                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia


MARY FRANCES WARWICK
                                         MEMORANDUM OPINION * BY
v.        Record No. 1336-95-2          JUDGE SAM W. COLEMAN III
                                             JULY 30, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Timothy J. Hauler, Judge
          Angela D. Whitley for appellant.

          Margaret Ann B. Walker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Mary Frances Warwick appeals her bench trial convictions for

second degree murder in violation of Code § 18.2-32 and use of a

firearm in the commission of murder in violation of Code

§ 18.2-53.1.   Warwick contends that the evidence is insufficient

to prove that she murdered Jesse Lewis because it does not

exclude the reasonable hypothesis that a third party entered

Lewis' home and committed the murder.   We hold that the evidence

is sufficient to prove the defendant's guilt beyond a reasonable

doubt and affirm her convictions.

     When the sufficiency of the evidence is challenged on

appeal, "we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
250, 356 S.E.2d 443, 444 (1987).   "The judgment of the trial

court shall not be set aside unless it appears from the evidence

that said judgment is plainly wrong or without evidence to

support it."    Id. at 250-51, 356 S.E.2d at 444.

     The evidence shows that the defendant placed an emergency

911 call on the morning of June 4, 1994, and informed the

operator that Jesse Lewis, her seventy-three year old fiance, had

attempted to kill himself.   The defendant told the 911 operator

that Lewis had shot himself in the leg and that he had been "very

depressed."    At first, the defendant reported that Lewis was

awake and breathing, but when the operator instructed the

defendant to "[l]ook at [Lewis'] chest and see if it's going up

and down like he's breathing," the defendant responded that it

was not and that she thought Lewis was dead.   The operator told

the defendant to "get a dry towel," which the defendant did, and

to turn Lewis on his back, but the defendant responded that she

could not turn him because "[h]e [was] too big for [her]."

Although the defendant stated that the door to the residence was

unlocked, she complied with the operator's instructions to go to

the door and let the police in when they arrived.
     Officers Robert Balducci and John Eyler responded to the

call and were met outside by the defendant.    She led them inside,

where they discovered Lewis on his bedroom floor with a .38

caliber gun beside him.   According to Officer Balducci, the

defendant stated that Lewis "had been in poor health and was



                                - 2 -
depressed."    She also stated that no one else was in the house.

The officers "made a quick check of the premises and found no one

else in [the house] and saw no signs of any forced entry into the

house."

      Detective Russell A. LesCault arrived at the crime scene a

short time later and performed gunshot residue tests on the

defendant and Lewis.    In administering the test on the defendant,

LesCault took samples from her skin on the top and inner portion

of her thumbs and forefingers, and on her forehead, cheek bones,

and chin.    Detective LesCault also checked the house and

confirmed that all windows were "locked and secured and that

there was "[n]o sign of forced entry to the residence or damage."
      Douglas DeGaetano, an employee of the Division of Forensic

Science, testified that he analyzed the gunshot residue tests

administered by Detective LesCault and identified particles of

primer residue on the defendant's left hand and face, and

particles indicative of primer residue on her right hand and left

hand. 1   Further analysis revealed that the victim had particles

of primer residue on both of his hands.    DeGaetano testified that

"[a]n individual could get primer residue on their hands or face

if they either fire a weapon or if they handle a dirty weapon or

if they're in the close proximity to the discharge of a weapon."

 According to DeGaetano, the size of the particles he found on
      1
      DeGaetano testified that particles of primer residue
contain lead, barium, and antimonium while particles indicative
of primer residue contain two of these three elements.



                                - 3 -
the defendant's hands and face was consistent with one of these

three methods of coming into contact with primer residue.

     The autopsy of the victim revealed that he had been shot

twice in the back, once in the left forearm, once in the left

upper leg, and once in the back of the head.   Lewis died from the

wound to his leg, which ruptured the femoral artery, in

combination with the wound to the back of his head.

Consequently, the defendant stipulated at trial that, contrary to

her initial statements during the 911 call, Lewis did not commit

suicide.
     At trial, the defendant testified that she was sleeping on

the morning of the murder when she was awakened by a "pow."    She

heard a second and third "pow," and went to Lewis' bedroom, where

she found him lying "at the foot of the bed" with "blood all over

his leg."   The defendant testified that she did not see his back

or the back of his head, and that she put her hand on Lewis'

neck, but could not feel a pulse.   She then went to the kitchen

to get the portable phone and returned to the bedroom to attend

to Lewis.   According to the defendant, the only other time she

left Lewis' bedroom was to retrieve a towel from the hallway

bathroom.   The defendant further testified that her attention was

focused on Lewis and that she "didn't know" whether anyone else

was in the house at the time.

     The defendant contends that the evidence fails to exclude

the hypothesis that an intruder shot Lewis, deposited the gun on




                                - 4 -
the floor next to Lewis, and then exited the house through the

front door undetected by her.    In the alternative, the defendant

contends that after shooting Lewis an intruder may have hid in

the bathroom adjacent to Lewis' bedroom and then exited through

the front door either when the defendant went to the kitchen to

call 911 or when she retrieved a towel from the hallway bathroom.

These hypotheses are not suggested or supported by the evidence;

they are merely the product of defense counsel's ruminations.

Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329

(1983); Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608,

609 (1981).

        There was no evidence that an intruder, or anyone other than

the defendant, was present when Lewis was shot.    In order for an

intruder to have shot Lewis, and escape the house undetected, he

would have had to have done so before Lewis arrived at the scene,

or by secreting himself in the house and escaping undetected

through the front door prior to the arrival of Officers Balducci

and Eyler.    However, the defendant testified that she was "almost

to the door" of her room when she heard the final shot and

proceeded immediately to Lewis' room.    The defendant's testimony

and a sketch of the bedrooms showed that the door of the

defendant's room was immediately adjacent to the door of Lewis'

room.    On these facts, it is not reasonable to conclude that an

intruder shot Lewis and escaped undetected or unobserved through

the front door of the house before the defendant opened her door



                                 - 5 -
and entered Lewis' bedroom.

     As to the defendant's hypothesis that a third party could

have shot Lewis and then hid in the bathroom located off Lewis'

bedroom before escaping, the defendant notes that she left the

bedroom twice -- once to retrieve the phone from the kitchen and

a second time to get a towel from the hallway bathroom thereby

providing an opportunity for an intruder to escape undetected.

She claims that an intruder could have exited the house on either

one of these occasions.   Quite simply, there is no evidence that

an intruder was in the house.
     The evidence of primer residue on the defendant tends to

prove that she fired the fatal shots and thereby tends to refute

any reasonable hypothesis of innocence.   According to the

defendant's testimony, she was not present in Lewis' bedroom when

the shots were fired and did not handle the gun after she found

Lewis.   Consequently, she attempts to explain the presence of the

primer residue on her face and hands by pointing to DeGaetano's

statement on cross-examination that it is possible to come into

contact with primer residue by touching another person who has

residue on the area touched.    However, the most that can be

garnered from the 911 tape and the defendant's testimony is that

she touched Lewis on his neck to take his pulse, attempted to

turn him on his back, and applied a towel to his leg wound.     No

evidence shows that the defendant touched Lewis' hands, and no

evidence proves that Lewis had primer residue on any other part




                                - 6 -
of his body.   Furthermore, no evidence proves that Detective

LesCault did not wash his hands and had primer residue on them

when he conducted the gunshot residue test on the defendant.

Accordingly, DeGaetano's statement that it is possible to come

into contact with gunshot residue by touching another person does

not, without more, provide an innocent explanation for the

presence of gunshot residue on the defendant's hands and face.

The only reasonable explanation for the presence of gunshot

residue on the defendant's person that flows from the evidence is

that she fired the gun.
     Although the defendant told the 911 operator that Lewis

committed suicide and indicated the same to Officers Balducci and

Eyler at the crime scene, the evidence is conclusive, as the

defendant conceded at trial, that Lewis' killing was a homicide.

Therefore, the trial judge was entitled to infer that the

defendant's initial statements regarding Lewis' shooting were

fabrications intended to conceal her guilt.   See Black, 222 Va.

at 842, 284 S.E.2d at 610; Rollston v. Commonwealth, 11 Va. App.
535, 547, 399 S.E.2d 823, 830 (1991).   The trial judge was also

entitled to infer from the evidence before him, as well as his

own credibility determinations, that the defendant lied to

conceal her guilt when she testified that she did not shoot

Lewis.   Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d

95, 98 (1987) (en banc).

     We hold that the evidence is sufficient, viewed in the light



                               - 7 -
most favorable to the Commonwealth, to exclude every reasonable

hypothesis of innocence and prove beyond a reasonable doubt that

the defendant killed Jesse Lewis.   Therefore, we affirm the

defendant's convictions.

                                                         Affirmed.




                              - 8 -
Benton, J., dissenting.



     "[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which [the accused]

is charged."    In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,

1073, 25 L. Ed. 2d 368, 375 (1970).     The Supreme Court of

Virginia has consistently held that convictions may not be based

upon speculation, surmise, or conjecture.
          It is, of course, a truism of the criminal
          law that evidence is not sufficient to
          support a conviction if it engenders only a
          suspicion or even a probability of guilt.
          Conviction cannot rest upon conjecture. The
          evidence must be such that it excludes every
          reasonable hypothesis of innocence.


Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533

(1951).   See also Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977).

     Where the Commonwealth relies upon circumstantial evidence

to prove guilt, that circumstantial evidence must be "wholly

inconsistent with the innocence of [the] defendant."      Foster v.

Commonwealth, 209 Va. 326, 330, 163 S.E.2d 601, 604 (1968).      In

other words, "[w]here inferences are relied upon to establish [a

factual element of the offense], they must point to [that fact]

so clearly that any other conclusion would be inconsistent

therewith."    Dotson v. Commonwealth, 171 Va. 514, 518, 199 S.E.

471, 473 (1938)(citation omitted).      Thus, "'[c]ircumstances of

suspicion, no matter how grave or strong, are not proof of guilt


                                - 9 -
sufficient to support a [guilty] verdict . . . beyond a

reasonable doubt.'"     Powers v. Commonwealth, 182 Va. 669, 676, 30

S.E.2d 22, 25 (1944).

     Upon its assumption that no other explanation is rational,

the majority concludes that the evidence proved that Mary Frances

Warwick shot and killed Jesse Lewis.     The evidence in the record

clearly reveals, however, that the Commonwealth's evidence did

not exclude alternate, reasonable theories of Lewis' death.

Therefore, I dissent.
     In upholding the verdict that Warwick was guilty of

homicide, the majority makes much of Warwick's initial statement

to the dispatcher that Lewis attempted to commit suicide.

However, the evidence proved that Warwick had a valid reason to

believe that Lewis shot himself.    The evidence proved that

Warwick and Lewis met in 1993 "at the Round Table which was a

group of elderly people that met at the Methodist Church to

socialize."   At that time, Lewis was seventy-one, living alone,

and very lonely.   Warwick was sixty-three and also lonely.    They

became friends and began to spend time together.    They walked

together in the mall with other elderly people, walked through

the woods at Iron Gate Park, and often watched the airplanes at

Chesterfield Airport.

     During this time, Warwick lived in her own home with her

son, who abused alcohol and verbally abused her.    Sometime after

Warwick and Lewis became friends and had spent significant time



                                - 10 -
together, Lewis invited her to move into his residence and to

occupy one of his two unused bedrooms.   Between Thanksgiving and

Christmas of 1993, she moved into his house.   Because she had

"moral misgivings" about living with Lewis while they were

unmarried, Warwick consulted with a family counsellor.    The

counsellor testified that Warwick "felt that might have

compromised her morally, and she wanted some reassurance about

that."   Warwick and Lewis had separate bedrooms in Lewis' house.
     Prior to his death, Lewis learned that his daughter, who

lived in California, would be coming to his house for a visit.

In anticipation of this visit, Warwick moved into a bedroom with

a single bed nearer to Lewis' bedroom.   This arrangement would

have allowed Lewis' daughter and her husband to have the double

bed in Warwick's bedroom.   The evidence proved that Lewis' three

children rarely visited him.

     Before Valentine's Day of 1994, Lewis gave Warwick an

engagement ring, and they made plans to marry once she reached

sixty-five, the age at which she would be covered by medicare

health insurance.   Sometime after they became engaged, Lewis

began experiencing medical problems.    He had numbness in his feet

and legs.   He also suffered depression and was taking medication

for his depression.   To combat the numbness, Lewis tried to walk

more often because the walking "helped, but toward the end, he

said [walking] didn't help."   He often expressed fears about

becoming disabled and "said he'd rather be dead than be a




                               - 11 -
cripple."    Warwick consulted with the family counsellor about

Lewis' depression and suggested to Lewis that he see the

counsellor or his doctor.

     On June 3, Lewis took Warwick shopping to buy a blouse for

an upcoming church social.   When they walked in the mall, Lewis

"was very slow" and "said he did not feel good."   "[O]n the way

back home," Lewis said to Warwick, "I have no feeling in my feet

whatsoever. . . .   I can't even . . . feel to touch the brake."

Later that evening, they watched television and played card

games.   At ten o'clock, after Warwick went to her bedroom, Lewis

"stopped by the door [to her bedroom], and he said, 'I love you,'

and he went to bed."
     In her statements to the police and in her testimony at

trial, Warwick consistently described the events on the morning

of June 4.   While asleep in bed, she was awakened at

approximately 6:00 a.m. by "a pow . . . and then . . . heard

another pow," and she sat up in bed.    When she heard a third

shot, she was almost at the door to her bedroom.   She entered

Lewis' room and saw him partially sitting and partially lying at

the foot of his bed on the floor.   She saw blood covering his

leg, "put [her] hand on his neck, and he moaned, and [she]

couldn't feel a pulse."   She saw lots of "blood running down his

leg and his arm and there was blood all over everywhere."    She

also noticed a gun on the floor near his hand.

     Warwick left the room, went into the kitchen, and called 911




                               - 12 -
on a portable telephone.   In the recorded telephone

conversations, Warwick told the dispatcher that Lewis apparently

had tried to kill himself by shooting his leg, and she said Lewis

had been depressed.   When the dispatcher asked if Lewis was

conscious and breathing, Warwick replied, "Wait a minute.    Yes,

he's conscious."   She also said he was breathing.   Warwick asked

for quick assistance and indicated she had a heart condition and

was in great distress.   In response to the dispatcher's

instructions, Warwick checked Lewis' breathing again, said he was

breathing and awake, but "won't talk."
     The 911 dispatcher instructed Warwick to get a towel and to

move Lewis.    Warwick placed a towel on Lewis' leg wound.   Warwick

told the dispatcher that she had attempted to move Lewis but he

was too heavy.   The dispatcher asked if Lewis was shot any other

place.   Warwick said she did not know because she could not move

or turn him.   When she told the dispatcher that Lewis was still

moving, the dispatcher asked her to try to get Lewis on his back.

She then told the dispatcher that Lewis' "blood [was] all over

the floor" and "his arm and his legs [were] covered in blood."

The dispatcher encouraged Warwick to stop crying and screaming

and instructed Warwick to "just push him on the shoulders" to lay

Lewis on his back.    The dispatcher told Warwick again to check

his breathing.   Warwick did so and also told the dispatcher the

gun was on the floor and that she had not touched it.

     The recording of Warwick's 911 telephone call confirms much




                               - 13 -
of Warwick's description of Lewis and establishes that Warwick

was under extreme stress when speaking with the 911 dispatcher.

Warwick was confused and concerned that she was "going to have a

heart attack."    She described the events as "an ugly nightmare"

and was crying during the telephone call.    Warwick initially

reported that Lewis was breathing and when asked to check his

chest movement, became distressed and reported, "I think he is

dead.    Oh, God."   Because of the way that Lewis was slumped

against the bed, Warwick could not see the wound to the back of

Lewis' head.    Moreover, the autopsy report indicates that the

bullet that entered the back of Lewis' head travelled downward

and did not exit the front of his body.    Thus, Warwick had no

reason to know of the head wound.
        In summary, the evidence proved that Warwick discovered

Lewis on the floor with a leg wound and a gun nearby.    It was

early in the morning; she had been awakened by the gunshots; and

she had no reason, apparent on the record, to believe he had been

shot by an intruder.    She knew that as late as the previous

evening Lewis had been very depressed because of his poor health.

Based on these circumstances, the evidence established a

reasonable basis for Warwick's assumption that Lewis shot

himself.

        Despite the strong evidence in this record that Lewis may

have shot himself, Warwick's counsel "concede[d]" during an

argument at trial on the question of admissibility of certain




                                - 14 -
evidence that Lewis' death was a homicide.   In convicting

Warwick, the trial judge also ruled that "[a]ny theories of this

case that suggest suicide or death as the . . . result of an

intruder or third party proved to be implausible."   Despite that

concession by counsel and the trial judge's ruling, the evidence

did not prove beyond a reasonable doubt that Warwick killed

Lewis.

     The Assistant Chief Medical Examiner testified as follows:
          Mr. Lewis had five gunshot wounds. One of
          those was to the back of his head. Two were
          to his upper back. He had an abnormal
          curvature of his spine so that he had a bit
          of a hunch back, and he had two superficial
          wounds that passed through that area in his
          upper back. He also had a graze wound to his
          left forearm, and he had a gunshot wound
          which passed through his left upper leg.
             The gunshot wound to his head caused a
          small amount of tearing and some bruising on
          his brain and could be considered a
          potentially lethal wound, but in my view the
          clearly lethal injury in this case was the
          gunshot wound to his leg which went through a
          major artery in that leg.


The medical examiner further testified that the back wound and

the head wound were caused by bullets travelling "from the

direction of the head of the deceased toward his feet."   In

describing the cause of the head wound, he said, "as [the bullet]

traveled downward [in the head], the concussion from the passage

of the bullet, the energy from the passage of the bullet caused a

superficial injury to the underlying brain."   He stated that the

leg wound could have been the lethal wound because it caused a




                             - 15 -
severe loss of blood through the severed artery.    Neither the

medical examiner's testimony nor any of the Commonwealth's

evidence excluded the hypothesis that all of the wounds were

self-inflicted, with the head wound being the last one.

        The evidence proved that both of Lewis' hands contained

barium antimonium or lead molecules, described as gunshot

residue.    The majority summarily dismisses the reasonable

hypothesis that when Warwick touched Lewis she received traces of

the residue from that contact.    Contrary to the majority's view,

the evidence proved that during the 911 telephone call Warwick

had significant and extended contact with Lewis when she checked

his breathing, used a towel to cover his wound, and attempted to

move him onto his back.    Indeed, Warwick tried to stop the

bleeding by putting a towel on the leg wound.    She also

testified, "I never touched the gun.     I did try to get Jesse

over.    That's the nearest I got to the gun."   Consistent with her

testimony, her fingerprints were not on the gun.
        Moreover, a forensic scientist testified as follows:
             Q    What would be the ways in which an
             individual would get primer residue on those
             parts of the hand that you described or the
             fleshy areas of the face?

             A    An individual could get primer residue
             on their hands or face if they either fire a
             weapon or if they handle a dirty weapon or if
             they're in the close proximity to the
             discharge of a weapon.

             Q    I'm going to show you the Commonwealth's
             exhibit, the gunshot residue kits from both
             the defendant, Ms. Warwick, and Mr. Lewis.
             I'm going to ask you if you have seen those



                                - 16 -
before and had occasion to conduct
investigations on those two pieces of
evidence.

A     Yes. I recognize the unique forensic
science number that was assigned to this case
and my initials on the top of each one of
these gunshot residue kits and also my
initials at the bottom of these kits where I
sealed them after analysis with evidence
tape.

Q    Can you tell the Court please what the
results of your analysis of the kit
concerning the defendant, Ms. Warwick, was?

A    Yes. I was able to identify a single
particle of primer residue, Mrs. Warwick's
left hand and on her face. I also found
particles that were indicative of primer
residue on her right hand and left hand.
     When I say indicative of primer residue,
that means instead of a particle that
contains all three elements, lead, barium and
antimonium, I found particles that contain
two of those elements, in this case lead and
antimonium.

     I can't identify that material [on
Warwick] as being definitely from the primer.
It could be from the primer. It's indicative
of primer residue, but bullet lead also
contains antimony, for example, so it may be
that those particles originated from the
bullet rather than the primer.

Q    Did you have occasion to conduct a
similar examination on the gunshot residue
kit of Mr. Lewis?

A    Yes, I did.

Q    Can you indicate what your results were?

A    I was able to identify primer residue on
both the right and left hand from Mr. Lewis.

Q    Now, you've indicated I think that there
are certain specific ways in which the
residue is deposited on the fleshy areas of



                   - 17 -
          the skin, the hands, the face and so forth of
          an individual or an object; is that correct?

          A      Yes.

          Q    Does the size of the particles that you
          found deposited on the hand and the face of
          Ms. Warwick indicate to you that the
          collection of that was consistent with one of
          the three ways which you indicated to the
          Court?

          A      Yes, it does.

          Q    Did you have occasion to examine the
          size of the particles insofar as Mr. Lewis
          was concerned?
          A    I did record the size of the particles
          that were found on Mr. Lewis' hand, yes.

          Q    Did you draw any conclusion   about
          whether or not he would have had   to have
          collected in one of the ways you   described as
          well or whether there were other   options
          available for him?

          A    The primer residue found on Mr. Lewis'
          hands would be consistent with having been
          deposited there by one of the methods that I
          have already I described.

(Emphasis added).


     Furthermore, the forensic scientist testified that residue

can be transferred by one person touching another who has residue

on his person.   Indeed, he described the following precautions

that police are trained to take to avoid that occurrence:
          Q     And you don't know if Detective LesCault
          gave Ms. Warwick an opportunity to wash her
          hands; do you? And you don't know if she
          actually washed her hands, as you've just
          described to the Court is supposed to be
          done?

          A    Actually the subject to be sampled
          should not wash their hands. It's the


                                 - 18 -
          officer that is suppose to wash his hands.
          Since most officers carry weapons, you want
          to make sure that there isn't a potential for
          contamination for the subject about to be
          sampled. So, I'm assuming in this case that
          [Warwick] did not wash her hands, but as I
          say, I was not at the scene.

          Q    So, you do not know if the officer
          washed her hands as he's supposed to; do you?

          A    I do not know.

          Q    And you said that you make sure that the
          officer does this so that the sample is not
          contaminated. How can the sample be
          contaminated?
          A    There is a potential of contamination if
          an individual has primer residue on his hands
          and he is sampling an individual's hands.
          Some of that primer residue, it's possible
          that during the sampling procedure some of
          the primer residue could fall off one
          individual's hand and land on another's and
          thereby be picked up by the sampling devices.


     Consistent with his testimony that the police may

contaminate a person from their prior handling of a weapon, the

forensic scientist described how Warwick may have gathered

residue on her.
          Q     Let me ask you in the converse of what
          [the prosecutor] asked you. Let's assume
          that [Warwick] did not wash [her] hands, the
          officer did not wash her hands, and she
          actually touched someone that had primer
          residue on them. She could have then got
          primer residue on her hands; couldn't she?

          A    If the individual that she touched had
          primer residue on the individual's skin in
          the area that she touched, it is possible to
          transfer that residue from one individual to
          another in the manner you are suggesting,
          yes.




                                - 19 -
     This evidence conclusively establishes that the residue can

be transferred from person to person and that Warwick had an

extended opportunity to be exposed to the residue as she tried to

assist Lewis after he was wounded. 2    She may have even touched

some of the four spent cartridges found on the floor.     That

Warwick did not testify to touching Lewis' hand is not material.

 The uncontradicted evidence proved that the dispatcher's

instructions required her to have significant contact with Lewis

as she sought to help him.   Moreover, Warwick was "hysterical and

crying" when talking to the dispatcher and the responding

officers.   Ordinary human experience suggests that her failure to
                                                                    3
 recall every discrete movement she made was not unreasonable.
     2
      That residue may be transferred in this manner is a
scientific fact and is not speculative.

            Firearm discharge residues are present at a
            shooting scene and on the fired weapon and
            spent cartridges. They are easily
            transferred by contact and, therefore, it is
            possible that touching the hands of a person
            who has recently fired a weapon, handling a
            fired weapon, removing a fired cartridge, and
            similar acts could leave residues on a
            person's hand, although he himself has not
            fired a weapon. However, it is found that
            these acts usually contaminate both hands,
            thereby giving point counts of greater than 5
            for each hand.

Edward J. Imwinkelried, Scientific and Expert Evidence, 297 (2d.
ed. 1981).
     3
      Significantly, however, Warwick knew that she did not touch
the gun that she saw on the floor next to Lewis. During intense
interrogation in which the police officers lied to her about the
facts and threatened her with life imprisonment, Warwick
consistently denied shooting Lewis or touching the gun.
Confirming her consistent statements to the police and testimony


                               - 20 -
     To bolster the speculative nature of its case, the

Commonwealth sought to prove that no other person could have

entered the house.   Even that proof was based on conjecture

because, contrary to the Commonwealth's assertion, no evidence

proved that the door to the residence was locked.   Warwick told

the dispatcher that the door was unlocked.   The dispatcher,

however, instructed Warwick to go to the door and told Warwick

that the police would not enter until she went outside.

Consistent with the dispatcher's statement, the police officer

testified that he was in the driveway and "had been there a

couple of moments" when Warwick came to the door in her pajamas.

The police officer did not approach the house until Warwick came

to the door, "motioned[,] and yelled for [the officer] . . . to

come in."   The reasonable conclusion to draw from this evidence

is, not that the door was locked, but that for safety reasons the

police officer wanted to see Warwick outside the residence before

he entered.
     Furthermore, even if the door was locked, no evidence proved

that the door would not have locked when closed by a person

exiting the house.   Additionally, one of Warwick's witnesses

testified that several months after the offense, he found a key

to the front door, marked "F. Door," outside the residence.
(..continued)
that she did not touch the gun, none of her fingerprints were
found on the gun. Moreover, the Commonwealth never explained the
inconsistency between the lack of Warwick's fingerprints on the
gun and its theory that the residue found on her hands occurred
from firing the gun.




                              - 21 -
     Considering all of the evidence, the Commonwealth did not

prove beyond a reasonable doubt that Warwick murdered her friend,

Lewis.   By no means did the physical evidence prove Warwick's

guilt beyond a reasonable doubt.    The Commonwealth's case rests

on mere speculation, not proof, that a third individual was not

in the house that morning; therefore, by a process of exclusion,

the majority concludes that Warwick must have killed Lewis.

However, no evidence proved that Warwick fired the gun.

Furthermore, the Commonwealth did not prove that the house was

secure from third parties.   Simply put, the evidence does not

"point to [Warwick's] guilt so clearly that any other conclusion

would be inconsistent therewith."    Dotson, 171 Va. at 518, 199

S.E. at 473.

     In addition to the recorded conversation on the 911

emergency line, Warwick gave several comprehensive statements to

the police in which she explained her conduct when she found

Lewis wounded.    She denied touching or firing the gun and denied

shooting Lewis.   Her testimony at trial explained all of the

events of that morning.   Furthermore, conspicuously absent is any

reason or suggestion why Warwick would have shot Lewis.    Warwick

did not stand to gain financially from the murder.   No evidence

proved that any disagreement arose between the couple.    Although

motive is not a necessary element of murder, in view of the

circumstances of Lewis' death, the absence of a motive is

significant.



                               - 22 -
     Based solely on the presence of particles of residue on her

hands and the belief that no third person could have shot Lewis,

Warwick was convicted of second degree murder.   That evidence

does not rise beyond conjecture, probability, and supposition.

Hall v. Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 905

(1983).   For all of the reasons stated above, I would reverse the

convictions.




                              - 23 -
