                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


FREDERICK B. SMALLWOOD, S/K/A
 FREDERICK B. SMALLWOOD, SR.
                                            MEMORANDUM OPINION * BY
v.           Record No. 1616-96-1            JUDGE RICHARD S. BRAY
                                               FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                       Wilford Taylor, Jr., Judge
             Robert Moody, IV (Segall & Moody, on brief),
             for appellant.

             Daniel J. Munroe, Assistant Attorney General
             (Richard Cullen, Attorney General, on brief),
             for appellee.



     A jury convicted Frederick B. Smallwood (defendant) for

first degree murder and related use of a firearm.        On appeal,

defendant complains that the trial court erroneously (1) allowed

the Commonwealth to impeach its own witness, thereby exposing the
                              1
jury to impermissible hearsay, and (2) refused to allow the
testimony of a defense witness relative to evidence introduced by

the Commonwealth during its case-in-chief.       We agree and reverse

the convictions.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

         *
          Pursuant to Code     §    17-116.010   this   opinion   is   not
designated for publication.
     1
      We consider this issue together with defendant's contention
that the court erroneously denied his motion for a mistrial.
disposition of the appeal.

        At approximately 1:50 p.m. on August 31, 1995, Hampton

Police Officer John B. Proctor was dispatched to defendant's

residence.    Upon arrival, Proctor found defendant standing

outside the home, and his wife, Debra Smallwood (Debra), dead in

an upstairs room, the apparent victim of a gunshot wound to the

head.    A gun was resting between the victim's feet, the "muzzle

point[ed] . . . outward . . . [and] handle pointed . . . away

from the body," with a single shell casing near her foot.
        Defendant stated to Proctor that Debra shot herself with the

weapon following an argument between the two, later elaborating

that she "got [his] gun off the desk and put it to her head and

pulled the trigger."    Still later, defendant told police that he

believed Debra had fired the gun accidentally, although she had

previously expressed suicidal thoughts.    Following arrest,

defendant inquired of police, "What if we were in an argument and

we fought over the gun and the gun accidentally went off?," and

answered affirmatively when asked "if that's what happened."

        The autopsy revealed little, if any, blood on Debra's right

hand and "minimal spatter" on her right arm.    The forensic

testimony further established that the gun was fired with the

muzzle against her skin while Debra was seated, leaving only a

"slight leak on the upper part of the wound."    Gunshot residue

samples (GSRs) taken from both defendant and Debra were negative.

        Detective Kenneth Seals testified that shell casings ejected




                                 - 2 -
from the weapon "usually go out a good distance into the air" and

that the "casing [near Debra's foot] appeared . . . to be in an

improper position.   The firearm appeared to be in an improper

position . . . [a]nd based on those matters, . . . we conducted

an investigation . . . as to whether or not this is an actual

suicide, or . . . a death by some other means."   A firearms

expert testified for the Commonwealth that testing of the weapon

revealed that casings were "ejected over to the right and a

little bit rearward."   This witness also testified that

"different weapons [eject casings] different distances."

However, the trial court would not allow the testimony of defense

witness, Peter A. Smerick, an expert "crime scene analyst," to

explain the "improper" location of the shell casing.   The court

also precluded introduction of the factual results of Smerick's

test firings of the weapon to establish its precise ejection

pattern and characteristics.
     Other Commonwealth evidence disclosed that defendant was

romantically involved with two women, Nancy Locke and Linda

Norton, and received money from each, both before and after his

marriage to Debra.   Norton continued to provide defendant

approximately $400-$500 every two weeks until trial.   Called as a

witness for the Commonwealth, she testified that her prior

statements to investigators relative to Debra's death were

"lies," coerced by police.   However, over defendant's repeated

objections, the court permitted the Commonwealth to impeach




                               - 3 -
Norton through excerpts from a transcript of her police

interview.    The Commonwealth also introduced an audio tape of the

interview, portions of which were actually played to the jury,

including hearsay highly prejudicial to defendant.

     The court later reconsidered its ruling and sustained

defendant's objection to the interview and tape evidence,

advising the jury:

             I have since . . . made a decision to sustain
             the defendant's objection to that tape, so
             the tape will not be played for your hearing.
              Now, there was a statement made in the tape
             attributed to Ms. Norton's mother that you
             heard. I'm going to instruct you to
             disregard that statement. You're not to
             consider that statement.

                       I.   IMPROPER IMPEACHMENT


     "Code § 8.01-403, 2 applicable in criminal as well as civil

cases, allows impeachment of a party's witness with prior

inconsistent statements after that witness has been found by the


     2
      Code § 8.01-403 provides, in pertinent part:

             A party producing a witness shall not be
             allowed to impeach his credit by general
             evidence of bad character, but he may, in
             case the witness shall in the opinion of the
             court prove adverse, by leave of the court,
             prove that he has made at other times a
             statement inconsistent with his present
             testimony; . . . . In every such case the
             court, if requested by either party, shall
             instruct the jury not to consider the
             evidence of such inconsistent statements,
             except for the purpose of contradicting the
             witness.




                                 - 4 -
trial court to be adverse." 3   Ragland v. Commonwealth, 16 Va.

App. 913, 920, 434 S.E.2d 675, 680 (1993) (citing Brown v.

Commonwealth, 6 Va. App. 82, 85, 366 S.E.2d 716, 718 (1988)); see

also Beverly v. Commonwealth, 12 Va. App. 160, 163, 403 S.E.2d

175, 176 (1991); Roberts v. Commonwealth, 230 Va. 264, 269, 337

S.E.2d 255, 258 (1985).    Whether a witness is "adverse" rests

with the trial court's sound discretion, see Virginia Electric &

Power Co. v. Hall, 184 Va. 102, 105, 34 S.E.2d 382, 383 (1945),

and the examining party must first obtain court permission to

question the witness by cross-examination.      See Ragland, 16 Va.

App. at 920, 434 S.E.2d at 680.

     On appeal, the Commonwealth correctly concedes that "the

portion of Norton's testimony in which she was impeached by her

prior statement to police was done improperly and was erroneously

introduced."   Indeed, the record clearly establishes that the

Commonwealth failed to follow the provisions of Code § 8.01-403

and, further, that the court's limiting instruction was both

untimely and inadequate.
                       II.   EXPERT TESTIMONY

     "'It is well settled in Virginia that the opinion of an

expert witness is admissible 'where the jury, . . . is confronted

     3
      "A prior inconsistent statement is received in evidence
exclusively to attack the credibility of the witness . . . [and]
not evidence of the truth of the earlier account and the trial
court, upon request, must instruct the jury accordingly." Royal
v. Commonwealth, 234 Va. 403, 405, 362 S.E.2d 323, 324 (1987)
(citations omitted).




                                - 5 -
with issues' that 'cannot be determined intelligently merely from

the deductions made and inferences drawn on the basis of ordinary

knowledge, common sense, and practical experience . . . ."'"

Hetmeyer v. Commonwealth, 19 Va. App. 103, 109, 448 S.E.2d 894,

898 (1994) (citations omitted).   "The 'expert's testimony is

admissible not only when scientific knowledge is required, but

when experience and observation in a special calling give the

expert knowledge of a subject beyond . . . common intelligence

and ordinary experience.'"    Id. (citations omitted).    However,

"[w]e consistently have held that the admission of expert opinion

upon an ultimate issue of fact is impermissible because it

invades the function of the fact finder."    Llamera v.

Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992)

(citing Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769,

771-72 (1984)); Cartera v. Commonwealth, 219 Va. 516, 519, 248

S.E.2d 784, 786 (1978); Webb v. Commonwealth, 204 Va. 24, 33, 129

S.E.2d 22, 29 (1963); Ramsey v. Commonwealth, 200 Va. 245, 249,

105 S.E.2d 155, 158 (1958).

     Here, evidence introduced by the Commonwealth focused on the

location of the shell casing, suggesting that it was inconsistent

with suicide.   In response, the defense offered Mr. Smerick as an

expert to address such evidence with proper testimony beyond the

scope or knowledge of the average juror.    Thus, in barring

Smerick's testimony, the court permitted the Commonwealth to

"open the door" to an issue with incriminating evidence but



                                - 6 -
refused defendant an opportunity to respond with competent

evidence.   Defendant's criminal culpability in Debra's death was

the ultimate issue before the court, and the position of the

ejected shell casing was a circumstance relevant to that

determination.

                         III. HARMLESS ERROR
            While an error committed in the trial of a
            criminal case does not automatically require
            reversal of an ensuing conviction, Code
            § 8.01-678, once error is established it is
            presumed to be prejudicial. The burden then
            shifts to the Commonwealth to show that the
            error was non-prejudicial. A criminal case
            will be reversed if the Commonwealth fails to
            overcome the presumption of prejudice and
            fails to show that the error was harmless
            beyond a reasonable doubt.

Pavlick v. Commonwealth, 25 Va. App. 538, 544, 489 S.E.2d 720,

724 (1997) (citations omitted).   "To determine whether an error

is harmless, this Court 'must review the record and the evidence

and evaluate the effect the error may have had on how the finder

of fact resolved the contested issues.'"    Charity v.
Commonwealth, 24 Va. App. 258, 265-66, 482 S.E.2d 59, 62 (1997)

(citation omitted).   "Non-constitutional error is harmless

'[w]hen it plainly appears from the record and the evidence given

at the trial that,' 'had the error not occurred, the verdict

would have been the same.'"    Id. (citations omitted).

     The Commonwealth's instant case was entirely circumstantial.

Much of Norton's impermissible hearsay and related evidence was

not otherwise established in the record, and the jury obviously




                                - 7 -
considered her testimony important, 4 notwithstanding the court's

inadequate limiting instruction.   The gravity of this error was

compounded when the court disallowed defendant's proper evidence

with respect to the ejection and position of the shell casing,

leaving unrebutted an inference from the Commonwealth's evidence

that the location was inconsistent with suicide.   Such rulings

clearly prejudiced the defendant, and we are unable to find that

the cumulative effect was harmless.
     Accordingly, we reverse the convictions and remand the case

for such further proceedings as the Commonwealth deems

appropriate.

                                         Reversed and remanded.




     4
      Of four inquiries submitted by the jury to the court during
deliberations, three related to Norton's testimony.




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