*1 295 487 S.E.2d Lynn ZELENAK Katina v. Virginia.
COMMONWEALTH No. 1816-94-3. Record Virginia, Appeals of Court Richmond. July 1997. of venue and City raises an issue of Richmond occurred in the offense jurisdic- court lacked allegation the circuit an that does not constitute Sand, and tion, power, this case. See Southern to decide or inherent 317, 328, Corp., Massaponax Sand and Gravel Co. v. Gravel (1926) (" county other than in a the action is tried 'That S.E. go to the county trial does not proper for its declared statute that (citation omitted); ") judgment.’ invalidate the jurisdiction, and does not 565-66, 228 Va. Garza cf. felonies jurisdiction over all (1984) have (stating "all circuit courts Commonwealth"). committed in the *2 Kellerman, Jr., Blacksburg (Long Long, & on Frederick M. brief), appellant. for (James Munroe, Attorney
Daniel J. Assistant General S. Gilmore, III, General; Darron, Attorney Leah A. Assistant General, brief), Attorney for appellee. BENTON, COLEMAN, WILLIS, ELDER,
Present: BRAY, FITZPATRICK, OVERTON, ANNUNZIATA JJ. A
UPON REHEARING EN BANC
ANNUNZIATA, Judge. of September panel
On a this Court reversed the Lynn convictions of Katina Zelenak for attempted robbery, conspiracy robbery to commit and a charge related firearms on ground the the trial court erred in refusing to admit certain of witness. Zelenak v. (1996). Va.App. S.E.2d 853 The panel respect affirmed the trial court with to Zelenak’s further contentions that the trial court in permitting erred the Com- monwealth to use a her and in competency report impeach to admit the of an refusing alleged co-conspirator. statement banc, en Upon rehearing we affirm Zelenak’s convictions.
I. a.m., At a a manager pizza making 2:00 of a restaurant was night at a a man a deposit gun approached bank when with said, it,” gunman manager him. After the “Hold jumped police using into his vehicle and called the his cellular tele- lot, phone. parking A vehicle then entered the bank contin- run, the gunman ued to the back of the bank where had sped away. manager automobile, As the followed the police arrived and stopped the automobile. The police arrest- driver, Zelenak, ed Katina her, and the men two with Smith, William gunman, and Paul Morehead. Zelenak and the two men were indicted for attempted robbery, use of a firearm during attempted robbery, and conspiracy robbery. commit
II. trial, On motion of Zelenak’s counsel prior the trial court ordered Zelenak to undergo a psychological analysis to deter- mine her competency to stand trial. Zelenak also filed a notice of present Later, intent to an insanity defense. after Zelenak withdrew the notice of present intent to an insanity defense, the Commonwealth moved in limine to prohibit the expert testimony Gwynn Polidoro, a licensed clinical social worker. The Commonwealth argued that Polidoro’s testimony would be offered proof Zelenak as of an ultimate issue of fact because it addressed Zelenak’s state of mind at the time of the offense. Defense counsel responded that Polidoro testify that Zelenak suffers from multiple personality disorder, a dissociative disorder that resulted from traumatic stress, which made her “susceptible to duress.” The trial court deferred ruling the motion until trial.
Zelenak’s defense at trial was that she participated in the crimes out of fear that Morehead would kill her or a member family. trial, her At appellant proffered that Polidoro would testify that was in such a
[Zelenak] fear of Mr. Morehead at most times that at any given time she if was afraid that she didn’t go *4 along with what he was saying going that she was to be harmed and carry through that would the of time the offenses, as well as before that and after that.
The court granted the Commonwealth’s motion to exclude Polidoro’s but allowed defense counsel to further expert’s chambers, In testimony. the defense proffered alia, that Polidoro testify, inter that
299 Paul, very relationship her recent with she became most [i]n has immediately. attached to him almost She revealed mixed, exploration, of violent sexual hu- episodes revealed feelings specialness, specialness. miliation mixed with very him on afraid of point She idolizes one seems be him In to the my opinion, got point on the other. she where escape she from him or disobedience would result believed in family her death or the death of a member. evidence, jury
At the of the Zele- conclusion convicted nak on all contends that the trial charges. three Zelenak testimony. court in not allowing erred Polidoro’s We dis- agree. expert may express
An an relative to opinion witness the existence or nonexistence of facts not within common knowledge, expert opinion upon but “the admission of an of fact it impermissible ultimate issue is because invades the Commonwealth, Llamera v. function of the fact finder.” 243 Llamera, (1992). Va. S.E.2d that in Supreme allowing Court held the trial court erred an to state ninety-three grams witness that of cocaine packaged in a of separate plastic “baggies” number had been that for that “packaged way quantity distribution” and suggest cocaine found “would that the owner of the cocaine Id. The was a who sold cocaine.” person Court reversed distribute, possession Llamera’s conviction for with intent reasoning expert expressed that the an on one of the issues, viz., Id. at ultimate intent distribute. at The con rejected S.E.2d 599. Court the Commonwealth’s tention that of the a expert’s “suggest” use word was 264-65, Id. at a qualification, not statement of fact. Commonwealth, also Bond v. See S.E.2d at 598-99. (1984) (trial 534, 536-39, 770-72 court in murder in admitting report case erred of medical examiner resulting which ruled out death from a possibility victim’s suicide); fall accident or four-story was caused either 245, 249-52, Ramsey 200 Va. S.E.2d (1958) (trial in allowing expert 158-60 court erred *5 conclude, to facts, arson case based of upon hypothetical set that fire was of incendiary origin). case, present appellant asserted the defense of
duress. “The common law defense of duress excuses acts crime, which would otherwise constitute a where the defen dant shows that product the acts were the of threats inducing a reasonable fear of immediate bodily death or serious injury.” Commonwealth, 28, 33, Pancoast v. 2 Va.App. 833, 340 S.E.2d (1986). Accordingly, appellant whether acted under du ress was “precise case,” and ultimate issue in the upon expert which opinion could not be expressed. See Cartera v. Commonwealth, 516, 519, (1978) 248 S.E.2d (reversing rape conviction where medical allowed express opinion that victims raped). had been To support a duress, defense appellant had to demonstrate that her criminal conduct was the product of Morehead’s unlawful threat that caused her reasonably to that performing believe the criminal only conduct was her reasonable opportunity to harm, avoid imminent death or bodily serious either to herself or another. See Daung Sam v. 13 Va.App. (1991). 411 S.E.2d Appellant proffered that her psychologist testify, alia, inter that appellant suffered from a disorder which made duress,” “susceptible her that Zelenak so feared Morehead at the time of the offense that she believed she would be harmed if she demands, did not comply with his and that Zelenak point reached a where she believed from escape Morehead or disobedience to him would result in her death or death of a family member. The proffered testimony expresses an precise and ultimate issue in this case and was, therefore, properly excluded the trial court.1 dissent, support suggestion 1. We find no for the of the to the extent it read, impose duty can be so a on the trial court to cull the “relevant probative portions” only testimony. and admit See, e.g., Hudspeth, Donavant v. 318 N.C. 812-13 (1986) ("when made, an offer of evidence is some of which is admissi- inadmissible, responsibility ble and some of which is it is not the of the III. defense,
Prior to her her counsel moved to prohibit the Commonwealth from cross-examining *6 Zelenak concerning statements made by during her the com- petency evaluation. The defense claimed questioning would establish Zelenak’s state of mind at the time of the offense, in § violation of Code 19.2-169.7. The Commonwealth argued that the evaluation would be for impeachment used purposes only. Because the court reporter changed tapes ruled, when the trial court the transcript does not contain the ruling on this issue.
After Zelenak defense, testified in her own the Com monwealth called her as a rebuttal witness. if When asked was, there “Some reason you don’t [your like family] or wouldn’t care whether anything happened them,” she re “No, sponded, I my love family very much.” Over defense objection, counsel’s the Commonwealth then inquired whether she had told psychologists that members of her family had physically and sexually abused her. Zelenak contends the trial court in erred allowing the Commonwealth to impeach her with statements she during made competen cy evaluation. disagree. We §
Code provides: 19.2-169.7 No statement or by disclosure the defendant concerning the alleged offense made during a competency or- evaluation dered pursuant 19.2-169.1, §to a mental state at the time of the offense evaluation ordered pursuant 19.2-169.5, §to or treatment ordered pursuant §to § 19.2-169.2 or 19.2-169.6 may against be used the defendant at trial as evidence or as a basis evidence, for such except on the issue of his mental judge separate trial evidence, the admissible from the inadmissible and in the appropriately-limited absence of an proponent offer evidence, judge’s ruling the trial excluding the evidence will be upheld Stores, appeal”); Inc., 728, Dunn v. Wal-Mart 909 S.W.2d (Mo.Ct.App.1995); 735 Papio-Missouri Holman v. River Natural Re- Dist., (1994); sources 246 Neb. N.W.2d Pennington 510 Brock, (Tex.Ct.App.1992). S.W.2d condition at the time of the offense after he raises the issue § pursuant to 19.2-168. § explicitly “concerning
Code 19.2-169.7 refers to statements that the at alleged questions offense.” Zelenak admits directly they issue did not relate to the offense but claims are highly prejudicial. irrelevant and view of Zelenak’s conces- questions directly sion that the did not relate to the offense ruling, the absence of a record of the trial court’s which correct, is presumed Young, be Justis v. (1961), 256-57 we affirm the trial court’s S.E.2d
decision.
TV. trial, attempted At Zelenak to call James Bane to testify concerning about a statement the offenses Morehead in jail. made while Defense counsel characterized the state ment as an Morehead’s interest and against admission also *7 the in of the contended that statement was made furtherance conspiracy. conspiracy The trial court ruled that the ended to the time the statement was and that prior made hearsay. statement was inadmissible however, The not appeal, record on does disclose the con- “It may tent of the statement Morehead have made to Bane. is well settled that when a evidence has been ruled party’s inadmissible, the must or avouch the party evidence for the for preserve ruling appeal; record order otherwise, the court has no basis to decide whether appellate Hylton, was 14 Va.App. evidence admissible.” Smith (1992). 354, 357-58, 712, Accordingly, 416 S.E.2d 715 the trial ruling court’s is affirmed. reasons, convictions are af- foregoing
For the firmed.
Affirmed.
BENTON, ELDER, Judge, joins, with whom Judge, dissenting. in a criminal expert
The rule is well settled that an witness as to the ultimate issue to be “may express opinion trial not an
303 Commonwealth, determined trier fact.” Price v. 18 760, 764, 642, Va.App. (1994); 446 S.E.2d 645 see Bond v. Commonwealth, 534, 538, 769, 226 Va. 311 S.E.2d 771-72 (1984). Equally well settled is the rule that an in a may criminal case “testify on the expert’s] basis of [the own personal observations or on the basis of evidence adduced at Commonwealth, trial.” 389, 416, Buchanan v. 238 Va. 757, (1989). S.E.2d Because the testimony Gwynn Polidoro, a worker, licensed clinical social did not express an issue, on the ultimate I would hold that judge the trial erred in excluding her testimony.
“The common law defense of duress excuses acts which crime, otherwise constitute a where the defendant shows that the acts were the product of threats inducing a reasonable fear of immediate death or serious bodily injury.” Commonwealth, Pancoast v. Va.App. (1986).
To support duress, a defense of a defendant must demon- strate that [her] criminal conduct product was the of an unlawful threat that caused reasonably to [her] believe that performing the criminal conduct only was [her] reasonable opportunity to avoid imminent death or bodily harm, serious either to [her]self or to another.
Daung Sam v. 13 Va.App. (1991).
S.E.2d To determine whether duress, Zelenak acted under jury had to decide if Zelenak “reasonably feared that [her] refusal to participate in the ... [crimes] would have resulted in *8 imminent death or serious injury to [herself or family.” her] Id. at omitted). S.E.2d at 839 (emphasis proffer The by defense counsel reveals that the expert would provid- have ed information concerning past Zelenak’s experiences and overall mental condition relevant to inquiry. that Defense counsel proffered the testify as follows:
If [Ms. Polidoro] was to testify she would observe that Mrs. Zelenak has revealed abuse and exposure to violence from the time she was a child unto her arrest. That she a has intense, relationships. series of but unstable That she has a rescuer for someone who would love repeatedly looked for herself as an repeatedly protect her and has failed to adult____ a sense of reported helplessness She has saying difficulty making lack of initiative she has decisions. [Morehead], In with she be- relationship her most recent him very immediately. came attached to almost She has mixed, episodes explora- revealed revealed of violent sexual tion, feelings specialness.... humiliation mixed with point very She idolizes him on one and seems to be afraid of him on In to my opinion, got point the other. she the where escape she believed from him or disobedience would result in or of a family her death the death member. that, proffer expression
The contained no of an in day question, reasonably the Zelenak believed that commit- harm. ting only way bodily the crime was the avoid serious Rather, concerned Zelenak’s overall mental condi- past experiences relating manipulation tion and and intimi- expert’s testimony explained dation. The would have circum- jury might stances and factors from which a have found a susceptible basis to believe Zelenak was to intimidation and Thus, could a manipulation. provided the evidence have basis jury for the to find that Zelenak acted because of a fear of Morehead. Such a would have tended to finding establish Zelenak’s defense of duress. provided tending
The also would have information to show that Zelenak’s fear was reasonable. See McGhee v. (1978) 219 Va. ‘(“ reasonably appeared to the accused at the time of “What act], act, necessity for is the creating [her] as [criminal [her], reasonably appeared provided test and not what it appear person would so to some other reasonable under ’ ”) (citation omitted). similar ascertaining circumstances.” fear, subjectively a reasonable whether Zelenak acted out of past experiences and mental condition were relevant her to commit the offense. determining compelled what Indeed, context, Supreme in the civil Court has stated that “ ‘is to be determined on consideration question of duress *9 of the surrounding sex, age, circumstances such as capacity, ” situation, Jacobs, and relation of parties.’ Jacobs v. (1977) (citation omitted). case,
In this where the defense claimed Zelenak had been abused previously, jury, evidence, upon proper might have found that Zelenak reasonably believed that a failure to com- mit the offenses would result in death or serious injury. Therefore, I would hold that the trial judge erred in refusing to admit the relevant and probative portions of Polidoro’s testimony that would have explained susceptibility to duress.2 If this admitted, evidence had jury been Nothing proffer 2. in the states an on the ultimate issue. In its entirety, was as follows: Ms. Polidoro degree education has a Wesleyan bachelor's from College and a master's in social University Georgia. work from the of Virginia She’s licensed in the State of as a Clinical Social Worker. diplómate She's a board certified in clinical social work. She’s a member Academy of the of Certified Social Workers. She's a mem- ber Society of the Study Multiple International for Personality of and Dissociation and is a former member of the Board of Directors of the Women’s quite Resource Center. background She has extensive continuing of education and serves one as of the local main resource people multiple personalities and dissociative orders. If she was testify she would observe that Mrs. Zelenak has revealed abuse and exposure to violence from the time she was a child unto her arrest. intense, That she has a series of relationships. but unstable That she repeatedly has looked for a rescuer for someone who would love her repeatedly protect and has failed to herself as an adult. That she
would, reports sexuality both compulsive inhibited sexuality. self-blame, shame, There guilt is evidence of pattern attempt- and a ing protect family partners. members and reported She has a helplessness sense of saying and lack of difficulty initiative she has making Paul, decisions. In her relationship most recent with she very became attached to immediately. him almost She has revealed mixed, episodes revealed exploration, of violent sexual humiliation feelings specialness, mixed with specialness. She idolizes him on point one very and seems to be afraid of my him on the other. opinion, got point she to the escape where she believed from him or disobedience would result in her family death or the death of a her, member. On one of after one of her interviews with her she reported reports and these are provided Cropper. that were to Dr. It appears switching that she was at the time Mrs. Crockett was killed estate, and would reveal more about the entire event if she were an if she were in the state that By switching, she was at the time. Ms. switching Polidoro would talk personality about the from one to the if Zelenak acted out of a reasonable have had to decide still fear of Morehead. remand for I reverse the conviction and
Accordingly, would *10 I a new trial. dissent.
Dennis L. CARR ELECTRIC & POWER COMPANY. VIRGINIA
Record No. 2939-96-4. Appeals Virginia, Court
Alexandria. July 1997. 54.1-3700, Virginia, the Code of Section other. I would read from who, say worker means a social worker which would a clinical social experience, professionally qualified at the autono- by education and is practice provide diagnostic, preventive and level to direct mous functioning threatened or affected services where is treatment also, To, and, impairment. psychological stress or health social and engage practice work it in the of social in this section in order to is, license, and I necessary which Ms. Polidoro shall be to hold the respectfully proffer. submit this