Richard William Webb, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
RICHARD WILLIAM WEBB, A/K/A
RICHARD W. WEBB
MEMORANDUM OPINION * BY
v. Record No. 0122-96-2 JUDGE MARVIN F. COLE
JUNE 10, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
Joseph E. Spruill, Jr., Judge
Gordon A. Wilkins (Charles J. McKerns, Jr.;
Wilkins & Davison; McKerns & McKerns, on
brief), for appellant.
Pamela A. Rumpz, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a bench trial, Richard William Webb (defendant)
was found guilty of capital murder, aggravated malicious wounding
and related firearm charges. He was sentenced to life
imprisonment on each of the greater charges and statutory
mandatory sentences on the firearms counts. Defendant contends
that the trial court erred in permitting the prosecution's expert
medical witness to testify on the ultimate fact at issue in the
aggravated malicious wounding charge, namely, whether the victim
was severely injured and was caused to suffer permanent and
significant physical impairment. Finding no reversible error, we
affirm the conviction.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
To prove aggravated malicious wounding, the Commonwealth had
the burden of proving that appellant committed an offense under
Code § 18.2-51.2 which "severely injured" the victim and caused
him "to suffer permanent and significant" physical impairment.
"On appeal, we review the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987).
The Commonwealth's evidence is undisputed. The defendant
did not put on any evidence to contradict the testimony of the
prosecution witnesses. The evidence shows that on February 27,
1995, defendant shot and killed his grandmother, Peggy Webb, in
the trailer where she lived with her husband. After murdering
his grandmother, defendant turned the rifle on his grandfather,
Julian Webb (Webb), and shot him in the left wrist. The bullet
penetrated Webb's wrist and lodged in his cheek. After being
shot, Webb fled the scene on foot as the defendant fired
additional shots at him. Webb was carried to the hospital and
treated by Dr. Ronald H. Patterson for injuries to his wrist and
face. He was discharged from the hospital on March 2, 1995, with
his arm in a cast.
At trial, Webb testified that he threw his left arm up to
ward off the bullet and the bullet went through the left wrist
and hit his right cheek. Webb testified that he remained under
Dr. Patterson's care, that the arm still bothered him and that
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this would continue the rest of his life. He stated that
fragments from the shot remained in both his wrist and cheek.
Webb testified that he was a commercial fisherman and that he had
not returned to work since the shooting because his hand burns
and hurts when he moves it. Webb was still taking pain
medication at the time of trial.
Dr. Patterson, an orthopedic surgeon, qualified as an expert
in the field of orthopedics and testified that Webb came under
his care at MCV Hospital for a gunshot wound to the left wrist.
According to his testimony, "Webb had a through and through
gunshot wound. Through the left wrist with an entrance and exit
wound in the distal forearm just proximate to the left wrist.
The slug from the gunshot wound continued into his right cheek
and lodged in the right maxillary sinus of his face, facial
bone." He stated that fragments remained in both the wrist and
the face. Dr. Patterson testified that Webb would lose some
function and motion of his left wrist and would be left with some
traumatic arthritis of his left wrist. Dr. Patterson testified
that his prognosis was that Webb
had several degrees of loss of motion.
Approximately five degrees in each plane,
which means to me five degrees of extension,
five degrees of flexion, five degrees of
ulnar deviation and five degrees of radial
deviation that he had lost secondary to his
injury. He had also lost a few degrees of
supination . . . . A loss of about ten
degrees of supination . . . .
Over defendant's objection, Dr. Patterson was permitted to
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testify further that, based upon his education, training and
experience, it was his opinion that Webb would suffer permanent
injuries from the gunshot wounds and that the injuries were
significant.
The Supreme Court has stated the following generally
accepted principle: "In any proper case, an expert witness may
be permitted to express his opinion upon matters not within
common knowledge or experience. Opinion testimony, however, is
not admissible 'upon the precise or ultimate fact in issue.'"
Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786
(1978) (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d
22, 29 (1963)). See also Jenkins v. Commonwealth, 22 Va. App.
508, 517, 471 S.E.2d 785, 790 (1996) (en banc).
However, it is equally as well settled that
expert opinion and testimony are admissible
"where the jury, or the court trying a case
without a jury, is confronted with issues
which require scientific or specialized
knowledge or experience in order to be
properly understood, and which cannot be
determined intelligently merely from the
deductions made and inferences drawn on the
basis of ordinary knowledge, common sense,
and practical experience gained in the
ordinary affairs of life."
Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755-56
(1979) (citation omitted). An expert medical witness can testify
concerning any physical evidence he observes at the crime scene
and in general he can testify as any other expert witness about
facts within his knowledge. He can testify about his examination
and tests he performed and what medical conclusions he reached as
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a result, except that he is precluded from testifying as to the
precise ultimate issue. See 2 Charles E. Friend, The Law of
Evidence in Virginia, § 17-17 (4th ed. 1993).
Because of the view we take on the issue, it is unnecessary
for us to decide whether the testimony of Dr. Patterson that Webb
suffered permanent and significant physical impairment
constituted testimony upon the ultimate issue in the case. For
this opinion, we will assume that his testimony was improper and
should not have been admitted. We hold that the admission of
such evidence was harmless error.
A nonconstitutional error is harmless if "it plainly appears
from the record and the evidence given at trial that the error
did not affect the verdict." Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). "An error
does not affect a verdict if a reviewing court can conclude,
without usurping the [trial court's] fact finding function, that,
had the error not occurred, the verdict would have been the
same." Id. An error may be harmless because other evidence of
guilt is "so overwhelming and the error so insignificant by
comparison that the error could not have affected the verdict."
Hooker v. Commonwealth, 14 Va. App. 454, 458 n.2, 418 S.E.2d 343,
345 n.2 (1992); see also Hanson v. Commonwealth, 14 Va. App. 173,
189-90, 416 S.E.2d 14, 24 (1992) (error inconsequential in
comparison to uncontradicted evidence of guilt). An error in
admitting expert testimony is harmless where an accused "has had
5
a fair trial according to law, and the proof is conclusive of his
guilt." Rodriguez v. Commonwealth, 249 Va. 203, 208, 454 S.E.2d
725, 728 (1995).
We find as a matter of law that the undisputed testimony of
Webb and the admissible testimony of Dr. Patterson constitute
overwhelming evidence that Webb's injuries were severe and that
he suffered permanent and significant impairment as a result.
That evidence showed that Webb continued under Dr. Patterson's
care at the time of trial, that the injured arm still caused Webb
burning and pain and that Webb's condition would continue for the
rest of his life. The evidence showed that bullet fragments
remained in Webb's wrist and cheek, that a thumb-sized scar
remained on Webb's cheek and that, because of his condition, Webb
could no longer engage in his work as a commercial fisherman.
Dr. Patterson's admissible testimony corroborated Webb's loss of
function and motion in his wrist and his prognosis included the
1
development of traumatic arthritis in Webb's wrist.
Dr. Patterson's inadmissible testimony was insignificant in
light of the overwhelming evidence concerning the severity of the
injury and the permanency of the impairment. To be sure, the
trial judge's comment with respect to needing the help of a
1
While Dr. Patterson could not distinguish between arthritis
which he expected to develop in Webb's wrist as a result of the
gunshot and that which would develop as a result of age, his
opinion that Webb would sustain "a certain degree of traumatic
arthritis of [the] left wrist joints" and that Webb "will have
significant symptoms in that wrist . . . for the remainder of his
life at times," was unequivocal and unrebutted.
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medical expert reflects the medical complexity of the issue the
court faced. That comment, however, does not lead us to conclude
that the trial court would have reached a different finding on
the ultimate facts at issue had Dr. Patterson not offered an
opinion with respect to them. Indeed, it is evident from other
comments that the court considered evidence other than the
opinion erroneously admitted in making its ultimate finding.
With respect to severity, the trial judge stated, "I think to be
shot in the face would be severe in almost any circumstances,"
and in concluding that Webb's injuries were permanent, the court
noted Webb's range of motion in his wrist "was limited in almost
every sphere." Finally, to the extent the evidence raises a
question concerning the extent of Webb's disability to work and
perform household chores, we note that the victim's disability is
not an element of the crime.
In sum, we find that Dr. Patterson's statement that the
injuries were permanent and significant, when considered with the
other testimony, had no effect upon the decision of the trial
judge. Accordingly, we find the error to be harmless and affirm
the conviction.
Affirmed.
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Benton, J., dissenting.
I would hold that the trial judge erred in allowing Dr.
Ronald H. Patterson to give his expert opinion about whether
Richard Webb's grandfather "suffer[ed] permanent and significant
physical impairment," an ultimate issue of fact under Code
§ 18.2-51.2. In addition, I disagree with the majority's
conclusion that the error was harmless. Accordingly, I dissent.
I.
To prove Webb committed the offense of aggravated malicious
wounding, the Commonwealth had to prove that Webb's grandfather,
"the victim[, was] . . . severely injured and [was] caused to
suffer permanent and significant physical impairment." Code
§ 18.2-51.2. The principle is well settled, however, that expert
"[o]pinion testimony . . . is not admissible 'upon the precise or
ultimate fact in issue.'" Cartera v. Commonwealth, 219 Va. 516,
519, 248 S.E.2d 784, 786 (1978) (citation omitted).
At trial, both the grandfather and Dr. Patterson, the
grandfather's treating physician, testified about the
grandfather's injuries. Over defense counsel's objection, Dr.
Patterson gave the following testimony, which is at issue in this
appeal:
COUNSEL: Based on your education, training
and experience and on the history taken here
and on your examination of the patient do you
have an opinion based on reasonable medical
probability as to two questions, A, the
causal connection of the injuries for which
you treated him and B, whether [the
grandfather] will suffer permanent and
significant physical impairment?
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A: Yes, sir, I do.
COUNSEL: All right. And what is your
opinion?
A: I think his injury was due to a gunshot
wound through and through near the left
wrist. I think he will suffer permanent
injury from this gunshot wound. I think he
will lose some function and motion of his
left wrist and I think he will be left with
some traumatic arthritis of his left wrist.
* * * * * * *
COUNSEL: And would you consider those items
that you testified to as being significant?
A: Yes, sir, I would.
(Emphasis added.)
These essential elements of the offense were ultimate facts
at issue in this prosecution. See Nicholas v. Commonwealth, 91
Va. 741, 750, 21 S.E. 364, 366-67 (1895); see also Webb v.
Commonwealth, 204 Va. 24, 32-33, 129 S.E.2d 22, 29 (1963). Thus,
the trial judge erred in allowing Dr. Patterson to testify that,
in his expert opinion, the grandfather's injuries were permanent
and significant.
II.
I disagree with the majority's conclusion that the trial
judge's error in allowing Dr. Patterson to give his expert
opinion on the ultimate issues was harmless. The error was not
harmless because it does not "'plainly appear[] from the record
and the evidence given at the trial that' the error did not
affect the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003,
9
1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code
§ 8.01-678). The majority reasons that "the admissible testimony
. . . constitute[s] overwhelming evidence" that the grandfather's
injuries were permanent and significant. I disagree.
The severity of the grandfather's injury was disputed at
trial. The grandfather testified that he was sixty-five years
old and had been a commercial fisherman until the shooting. He
stated that he could no longer engage in his trade as a
commercial waterman. He testified that his injury still bothered
him, that it still burned, and that he thought it would bother
him "as long as [he] live[d]." He testified that his cheek bone
was broken and that the wound was still numb. When asked whether
he thought his arm would ever return to normal, he answered,
"no." On cross-examination, however, the grandfather testified
that he "can move [his] hands all right" but he has not tried to
pick up anything. He also testified that he had accompanied his
son on his son's work boat since the incident. He further
testified that there is not really anything that he is prevented
from doing around his house.
Dr. Patterson testified and described the grandfather's
injuries as follows:
[The grandfather] had had a through and
through gunshot wound through the left wrist
with an entrance and exit wound in the distal
forearm just proximal to the left wrist. The
slug from the gunshot wound continued into
his right cheek and lodged in the right
maxillary sinus of his face, facial bone.
10
Although Dr. Patterson testified that the grandfather had
lost several degrees of motion of his wrist, he also testified,
contrary to the grandfather's testimony, that the grandfather's
injuries should not prevent him from engaging in his job as a
commercial fisherman. He further testified that the injuries
would not prevent the grandfather from performing normal
household chores. He diagnosed the grandfather with permanent
arthritis to his wrist, but he stated that he could not
distinguish between arthritis caused by the gunshot wound and
arthritis caused by the grandfather's age. 2 Moreover, Dr.
Patterson had not determined whether the grandfather was
suffering from arthritis in other areas of his body.
The majority discounts the importance of the conflict in the
evidence because "the victim's disability is not an element of
the crime." That assertion is simply unsupported by the law.
See Code § 18.2-51.2 (stating that an element of aggravated
malicious wounding is a "permanent and significant physical
impairment") (emphasis added).
Given the conflicting evidence, this is not a case in which
"the other evidence of [the permanence and significance of the
injury] was so overwhelming and the error so insignificant by
comparison that the error could not have affected the verdict."
Hooker v. Commonwealth, 14 Va. App. 454, 457 n.2, 418 S.E.2d 343,
2
In view of this testimony, the fact that the doctor's
opinion was unrebutted clearly does not lead to a conclusion that
the arthritis was caused by the gunshot wound.
11
345 n.2 (1992). Moreover, "[o]ther evidence of a disputed fact,
standing alone, does not establish that an error is harmless. If
so, a harmless error analysis would be simply a sufficiency of
the evidence analysis." Id. at 458, 418 S.E.2d at 345. Even if
"the other evidence amply supports the . . . verdict[], the
[error is not harmless when] disputed testimony may well have
affected the . . . decision." Cartera, 219 Va. at 519, 248
S.E.2d at 786.
The record in this case clearly established that the
expert's opinion "carr[ied] great weight . . . and could very
well have been the decisive factor in [the trier of fact's]
mind[] in determining [Webb's] guilt." Callahan v. Commonwealth,
8 Va. App. 135, 140, 379 S.E.2d 476, 479 (1989). Indeed, in
overruling defense counsel's objection and admitting Dr.
Patterson's testimony, the trial judge stated "I don't think we
can make it without the help of medical experts." Certainly, in
view of that statement alone, we cannot say that if the expert
had been prohibited from testifying that the injuries were
"significant," the trial judge would not have decided that the
injury was not "significant."
The majority states that the judge's comments show that the
judge "considered evidence other than the opinion erroneously
admitted." The majority cites two statements made by the judge
but fails to demonstrate that the doctor's inadmissible opinion
did not lead the judge to make those statements. Moreover, that
12
the judge considered other evidence does not rule out the
possibility that the judge also considered the erroneously
admitted evidence. Thus, we cannot "conclude, without usurping
the . . . fact finding function, that, had the error not
occurred, the verdict would have been the same." Lavinder, 12
Va. App. at 1005, 407 S.E.2d at 911.
For these reasons, I would hold that the trial judge erred
in allowing Dr. Patterson to give his expert opinion as to the
permanency and significance of the grandfather's injuries.
Because the error may have affected the judge's decision, I would
hold that the error was prejudicial and reverse the conviction.
Accordingly, I dissent.
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