David Toran Peeples v Commonwealth of Virginia

Tuesday 	24th
November, 1998.
David Toran Peeples, 	Appellant,
against 	Record No. 1261-97-2
Circuit Court Nos. CR96-3377 and CR96-3378
Commonwealth of Virginia, 	Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On October 13, 1998 came the appellee, by counsel, and filed
a petition praying that the Court set aside the judgment rendered
herein on September 29, 1998, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on September 29, 1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellee shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
DAVID TORAN PEEPLES OPINION BY
v. 	Record No. 1261-97-2 	JUDGE JAMES W. BENTON, JR.
SEPTEMBER 29, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Kieran T. Grennan (Grennan, Tondrowski, White
and Wicker, Affiliated Law Offices, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
David Toran Peeples, a juvenile, was tried and convicted by
a jury of aggravated malicious wounding and use of a firearm in
the commission of aggravated malicious wounding in violation of
Code §§ 18.2-51.2 and 18.2-53.1, respectively. 	On appeal,
Peeples contends the trial judge erred in refusing to admit
expert testimony regarding Peeples's mental state, which was
offered to negate malice and to aid in his claim of self-defense.
For the reasons that follow, we hold that the evidence was
admissible because it tended to aid his claim of self-defense.
Therefore, we reverse Peeples's convictions and remand for a new
trial.
I.
At trial, Paul Hicks testified that on the evening of August
24, 1996, he and Richard Harvey were walking along a street when

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Peeples drove by. 	Hicks called to Peeples, whom he had known for
many years. 	Peeples parked his car, exited the vehicle with Ross
Jefferson, and asked Hicks and Harvey if they wanted to purchase
a "blunt" -- a hollowed out cigar stuffed with marijuana -- for
two dollars. 	When Hicks and Harvey gave Peeples two dollars,
Peeples rolled the marijuana blunt. 	However, Peeples refused to
give the marijuana blunt to Hicks and Harvey because Peeples
wanted to smoke it with them. 	After Hicks and Peeples argued,
Hicks grabbed the marijuana blunt. 	Peeples walked away, leaving
Hicks, Harvey, and Jefferson.
Peeples returned a few minutes later and walked into an
alley with the three young men. 	Peeples continued to argue with
Hicks, who was then smoking the marijuana. 	During the argument,
Peeples withdrew a gun and shot Hicks twice, once in each leg.
Harvey, who was standing nearby, asked Peeples what he was doing.
Peeples replied, "Y'all want to fuck with me?," and chased
Harvey down the street. 	Peeples then returned and shot Hicks
three more times, twice in the abdomen and once in the head,
while Hicks was lying on the ground.
Harvey testified that all four of the teenagers had known
each other for many years. 	He testified that he and Hicks each
gave Peeples one dollar for the marijuana blunt. 	Harvey's
testimony of events was consistent with Hicks's testimony.
The surgeon who operated on Hicks testified that the shots
to Hicks's legs had a "straight-through trajectory" and the shots

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to the abdomen and head had a "downward trajectory." 	He
testified that the shot to the head appeared to come from behind
the ear and exit through the nose. 	Hicks lost vision in his
right eye as a result of the shooting.
Peeples, who was sixteen years of age and in the eighth
grade, testified in his own defense. 	He testified that the
events began when Hicks and Harvey asked him to change a twenty
dollar bill. 	When Peeples displayed his money in the alley,
Hicks said, "We're taking this." 	Harvey said, "Yeah. 	That's
right. 	We're taking it," and began reaching to his waist as if
he had a gun. 	Peeples said he was scared, thought he was being
robbed, and believed he would have been shot because Hicks had a
reputation for violence and other people had been robbed in the
neighborhood. 	Peeples testified that he panicked, drew his gun,
and pulled the trigger without aiming.
Before trial, the Commonwealth made a motion in limine to
exclude the testimony of Dr. Michelle Nelson, a psychologist, who
would testify concerning Peeples's mental condition at the time
of the offense. 	The trial judge reserved ruling on that motion.
At trial, Peeples's counsel proffered that Dr. Nelson would
testify that Peeples was mildly mentally retarded. 	Peeples's
counsel also proffered that Dr. Nelson would testify that because
of "the particular way that [Peeples's] mind is affected, he has
extreme difficulty correctly interpreting social situations. 	He
tends to miss the point exactly what is happening and reacts

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inappropriately." 	Peeples's counsel argued that Dr. Nelson's
testimony regarding the way in which Peeples mentally perceived
social situations would be relevant to two issues: 	(1) whether
Peeples acted under heat of passion rather than with malice when
he shot Hicks and (2) whether the shooting was an excusable act
of self-defense. 	The trial judge granted the Commonwealth's
motion to exclude the testimony.
The jury convicted Peeples of aggravated malicious wounding
and use of a firearm in the commission of this offense. 	At the
sentencing hearing, Dr. Nelson testified that Peeples has a
cognitive impairment and is mentally retarded with an IQ of 55.
She also testified that "Peeples is likely to interpret social
situations differently than most people. . . . 	[H]e has problems
with impulse control, he's likely to jump to conclusions that
other people wouldn't necessarily jump to." 	The trial judge
sentenced Peeples, a juvenile, to twenty-five years on the
aggravated malicious wounding charge and three years on the
firearm charge. 	See Code § 16.1-272.
II.
"As a general rule, a litigant is entitled to introduce all
competent, material, and relevant evidence tending to prove or
disprove any material issue raised, unless the evidence violates
a specific rule of admissibility." 	Tarmac Mid-Atlantic, Inc. v.
Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995).
"Evidence is admissible if it is both relevant and material," and

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it is inadmissible if it fails to satisfy either of these
criteria. 	Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 198,
361 S.E.2d 436, 441, 442 (1987). 	"Evidence is relevant if it has
any logical tendency, however slight, to establish a fact at
issue in the case." 	Ragland v. Commonwealth, 16 Va. App. 913,
918, 434 S.E.2d 675, 678 (1993). 	"Evidence is material if it
relates to a matter properly at issue." 	Evans-Smith, 5 Va. App.
at 196, 361 S.E.2d at 441 (emphasis added).
Peeples contends that Dr. Nelson's testimony was relevant to
prove self-defense. 	Peeples argues that his point of view, state
of mind, and the manner in which he perceives events were
material to the issue of whether he reasonably feared death or
serious bodily injury at the time of the shooting and that Dr.
Nelson's testimony was relevant to proving his mental condition
and his perception of social situations. 	We agree.
Self-defense is a recognized defense to a criminal charge in
Virginia. 	See McGhee v. Commonwealth, 219 Va. 560, 562, 248
S.E.2d 808, 810 (1978).
"Homicide [or wounding] in self-defense may
be either justifiable or excusable. 	If it is
either, it entitles the prisoner to an
acquittal." 	In either case, he is deemed to
be innocent and guiltless of any crime.
Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958)
(citations omitted). 	Assessing whether a particular act was
committed in self-defense is distinct from determining whether
its commission was intentional. 	In making a plea of

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self-defense, "a defendant implicitly admits the killing [or
wounding] was intentional." 	McGhee, 219 Va. at 562, 248 S.E.2d
at 810 (emphasis added). 	Instead, the issue in a plea of
self-defense is whether the accused's admittedly intentional act
was either justifiable or excusable. 	See id.; cf. Barrett v.
Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190, 192 (1986)
(stating that "[a] plea of self defense and a claim of provoked
heat of passion do not conflict with each other").
The "crucial issues" in a plea of self-defense are the
defendant's "state of mind at the time of the shooting and how
the circumstances reasonably appeared to [the defendant] at that
time." 	Jones v. Commonwealth, 217 Va. 226, 229, 228 S.E.2d 124,
125 (1976) (emphasis added). 	The test of self-defense is whether
the defendant reasonably feared "death or serious bodily harm to
himself at the hands of his victim." 	McGhee, 219 Va. at 562, 248
S.E.2d at 810. 	"It is not essential to the right of self-defense
that the danger should in fact exist." 	Id. 	However, "[t]he bare
fear that a man intends to commit murder [or inflict serious
bodily injury], however well grounded, unaccompanied by any overt
act indicative of such an intent, will not warrant killing [or
injuring] the party by way of prevention." 	Harper v.
Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955)
(citation omitted).
Unlike other tests used to evaluate whether conduct was
legally "reasonable," the Supreme Court has emphasized that the

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test of whether an accused's fear was sufficiently reasonable to
justify acting in self-defense is based upon the accused's
subjective point-of-view rather than the reaction of an ordinary
person to similar circumstances.1 See McGhee, 219 Va. at 562,
248 S.E.2d at 810 (noting the "subjective nature of the defense"
of self-defense). 	"[W]hether the danger is reasonably apparent
is always to be determined from the viewpoint of the defendant at
the time he acted." 	Id. 	Although most jurisdictions require
that a defendant's fear be both subjectively real and objectively
reasonable before a homicide or wounding will be justified or
excused on the ground of necessity, the Supreme Court has
expressly rejected any objective component in Virginia's test.2
1 For examples of other legal standards employing a
standard of "objective" reasonableness, see Gazette, Inc. v.
Harris, 229 Va. 1, 22-23, 325 S.E.2d 713, 729 (1985) (holding
that, in determining whether an editor of a publication exercised
ordinary care in a suit for libel, "a trial judge must decide,
viewing the circumstances objectively, whether a reasonable and
prudent editor should have anticipated that the words used
carried an imputation necessarily harmful to reputation");
Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 212-13
(1984) (stating that, for the purpose of determining tort
liability, a defendant has committed ordinary negligence if he or
she failed "to use 'that degree of care which an ordinarily
prudent person would exercise under the same or similar
circumstances to avoid injury to another'"); Gilpin v.
Commonwealth, 26 Va. App. 105, 110-11, 493 S.E.2d 393, 396 (1997)
(stating that, in assessing the legality of an investigative stop
made by a police officer, the court must "view the facts
objectively through the eyes of a reasonable police officer" to
determine whether "the officer could have entertained an
articulable reasonable suspicion that the defendant was involved
in unlawful activity").
2 See Wayne R. LaFave and Austin W. Scott, Jr., Handbook on
Criminal Law § 53 (1972) (stating that "the case law and
statutory law on self-defense generally require that the
defendant's belief in the necessity of using force to prevent

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The Supreme Court has ruled as follows:
"'What reasonably appeared to the accused at
the time of the shooting, as creating the
necessity for his act, is the test and not
what reasonably appeared to him, provided it
would so appear to some other reasonable
person under similar circumstances.'"
Id. at 562, 248 S.E.2d at 810 (quoting Harper, 196 Va. at 731, 85
S.E.2d at 254) (emphasis added); see Taylor v. Commonwealth, 185
Va. 224, 227-28, 38 S.E.2d 440, 441 (1946) (holding trial judge
erred in giving jury instruction on self-defense which stated
that the accused's fear should be evaluated from both the
accused's subjective point-of-view and from the perspective of "a
reasonable man placed under similar circumstances").3 Thus,
harm to himself be a reasonable one, so that one who honestly
though unreasonably believes in the necessity of using force in
self-protection loses the defense" but noting that "[t]here is a
little authority that an honest belief in the necessity of
self-defense will do; it need not in addition be a reasonable
belief"); 2 Charles E. Torcia, Wharton's Criminal Law § 127 (15th
ed. 1993) (stating that, in order to invoke the defense of
self-defense, "[t]he test is whether a reasonable man under
similar circumstances would have believed that he was in danger"
but noting "[o]ther courts regard it as immaterial whether an
ordinarily courageous man would or would not have believed that
it was necessary to take life"); see also 40 C.J.S. Homicide
§ 132 (1991) (same); 40 Am.Jur.2d Homicide § 154 (1968) (same).
3 In Taylor, the Supreme Court apparently overruled its
earlier decision to incorporate an objective "reasonable person"
component into the test of self-defense. 	In McReynolds v.
Commonwealth, 177 Va. 933, 15 S.E.2d 70 (1941), decided five
years before Taylor, the Court stated:
It is not enough for the accused to say that
he was terrified. 	There is no way by which
we can gauge his state of mind. 	Moreover,
one whose nerves were unstrung might have
been frightened by facts which would not have

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unlike in the context of determining mens rea, the accused's
mental state and manner of perception are material issues to a
plea of self-defense, regardless of whether an insanity defense
has been raised. 	See Craig v. Commonwealth, 14 Va. App. 842,
844, 419 S.E.2d 429, 431 (1992) (holding that when a claim of
self-defense is made "the acts must be viewed through the eyes of
the person allegedly threatened"); cf. Jacobs v. Jacobs, 218 Va.
264, 267, 237 S.E.2d 124, 126 (1977) (in civil context, question
of duress "is to be determined on consideration of the
surrounding circumstances such as age, sex, capacity, situation,
and relation of the parties").
In light of the subjective test for determining the
reasonableness of a defendant's fear in a plea of self-defense,
the trial judge erred when he concluded that Dr. Nelson's
testimony had no tendency to prove a material issue. 	The record
indicates Dr. Nelson would have testified that Peeples had an IQ
of 55, was "likely to interpret social situations differently
than most people," had "problems with impulse control," and was
"likely to jump to conclusions that other people wouldn't
necessarily jump to." 	This evidence is probative of Peeples's
troubled an ordinary man at all. 	It is for a
jury to say whether they were reasonably
sufficient to warrant an ordinary man in
believing that he stood in danger of serious
bodily harm.
Id. at 943, 15 S.E.2d at 74 (emphasis added); see Taylor, 185 Va.
at 229-32, 38 S.E.2d at 442-43 (Holt, J., dissenting).

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state of mind and manner of perception at the time of the
shooting.4
In addition, Dr. Nelson's testimony was relevant to the
credibility of Peeples's testimony that he actually feared
serious bodily injury at the hands of Hicks and Harvey. 	Peeples
testified that he feared he was being robbed by Hicks and Harvey
and could possibly be shot. 	According to Peeples, Harvey reached
for what Peeples believed was a gun. 	Peeples testified he
responded by firing his gun in a panic. 	In assessing the
credibility of Peeples's version of the facts, the jury had to
determine first, whether Peeples had an honest belief that he was
in danger, and second, whether, from Peeples's perspective,
Harvey's reaching motion, along with the comments of Harvey and
Hicks that they were taking Peeples's money, were "indicative of
a present purpose to make the apprehended attack." 	Stoneman v.
Commonwealth, 66 Va. (25 Gratt.) 887, 900 (1874). 	Dr. Nelson's
expert opinion about Peeples's mental condition would have tended
to prove whether Peeples's testimony represented a truthful
account of his actual interpretation of his encounter with Hicks
4 Contrary to the Commonwealth's argument, the record does
not indicate that Dr. Nelson's testimony would have directly
addressed the "ultimate issue" of whether Peeples was reasonably
afraid of death or serious bodily harm at the time of the
shooting. 	Instead, Dr. Nelson's testimony was limited to
testimony about Peeples's general mental characteristics and was
merely probative of the ultimate issue of the subjective
reasonableness of Peeples's fear. 	As such, this case is
distinguishable from Zelenak v. Commonwealth, 25 Va. App. 295,
300, 487 S.E.2d 873, 875 (1997).

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and Harvey.
The holding in Stamper v. Commonwealth, 228 Va. 707, 324
S.E.2d 682 (1985), excluding proof of a defendant's mental state
with psychiatric evidence, has no application to this aspect of
this case because, unlike in Stamper, the issue of Peeples's
mental state was properly at issue. 	The applicability of
Stamper's rule of exclusion is limited to those criminal cases
where the accused's mental state is not a material issue.
Although the holding of Stamper is broadly worded and might be
read as prohibiting the admission of expert psychiatric opinion
regarding a defendant's mental condition during the guilt phase
of a criminal case unless insanity is raised as a defense,5 the
Supreme Court has sanctioned the use of such evidence for at
least one other purpose. 	In Greenfield v. Commonwealth, 214 Va.
710, 204 S.E.2d 414 (1974), the Supreme Court tacitly approved
the admissibility of a psychiatrist's opinion regarding the
defendant's mental state when the defense of "unconsciousness"
had been raised. 	See id. at 713-14, 204 S.E.2d at 417-18 (noting
that the defense of unconsciousness may be raised by "persons of
sound mind"); see also LeVasseur v. Commonwealth, 225 Va. 564,
586, 304 S.E.2d 644, 656 (1983) (stating that "[w]hen . . . no
insanity defense is interposed, the defendant's mental condition
5 See Stamper, 228 Va. at 717, 324 S.E.2d at 688 ("we hold
that evidence of a criminal defendant's mental state at the time
of the offense is, in the absence of an insanity defense,
irrelevant to the issue of guilt").

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is only relevant insofar as it might be probative of a fact in
issue").
The Supreme Court's subsequent treatment of Stamper further
indicates that psychiatric opinion is inadmissible during the
guilt phase only when a defendant's mental state is not properly
at issue. 	In Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 371
(1990), the Court restated the holding of Stamper in more refined
terms. 	It noted that "[i]n Stamper v. Commonwealth, 228 Va. 707,
324 S.E.2d 682 (1985), we held that "[u]nless an accused contends
that he was beyond [the borderline of insanity] when he acted,
his mental state is immaterial to the issue of specific intent."
Smith, 239 Va. at 259, 389 S.E.2d at 879 (emphasis added).
Smith, like Stamper, was a case in which no insanity defense was
raised and psychiatric evidence regarding the defendant's mental
condition was offered to prove whether he possessed the requisite
mens rea of the crime charged. 	Id. at 258-60, 389 S.E.2d at
879-80.
Thus, we conclude Stamper does not compel the exclusion of
Dr. Nelson's testimony as it pertains to self-defense because the
issue of Peeples's mental state was properly at issue once he
raised this defense. 	As the Supreme Court has noted, a
defendant's state of mind is a "crucial issue[]" to determining
whether his or her fear of serious bodily harm was subjectively
reasonable under the circumstances. 	Jones, 217 Va. at 229, 228
S.E.2d at 125.

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III.
HARMLESS ERROR
The Commonwealth contends that if the trial judge erred, the
error was harmless insofar as it related to the jury's finding of
guilt. 	We disagree.
To be harmless "'it [must] plainly appear[] from the record
and the evidence . . . 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) (quoting Code § 8.01-678). 	"An
error does not affect a verdict [only] if a reviewing court can
conclude, without usurping the jury's fact finding function,
that, had the error not occurred, the verdict would have been the
same." 	Id.
After reviewing the record in this case, we conclude that
the error in refusing to admit Dr. Nelson's testimony on the
issue of self-defense was not harmless error as to the jury's
finding of guilt. 	Peeples testified that he knew Hicks had a
violent reputation. 	Peeples saw Harvey reaching for what Peeples
believed was a gun. 	Peeples believed he was being robbed and
feared he might be shot. 	Peeples testified that he started
shooting because he "panicked." 	Although the record contains
evidence that clearly contradicts Peeples's claim of
self-defense, "[o]ther evidence of a disputed fact standing
alone, does not establish that an error is harmless." 	Hooker v.
Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992).

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A harmless error analysis is not simply a sufficiency of the
evidence analysis. 	See id. 	Even if "the other evidence amply
supports the jury's verdicts, [error is not harmless when] the
disputed testimony may well have affected the jury's decision."
Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786
(1978).
We cannot say that if the jury believed Peeples's version of
the events and had before it the erroneously excluded evidence,
it would have reached the same verdict. 	We also cannot say that
the only reasonable conclusion to be drawn from this evidence was
that when Peeples shot Hicks, Peeples did not act in
self-defense. 	Because this excluded evidence clearly tended to
support Peeples's claim of self-defense, it does not "plainly
appear" that the proffered evidence would not have affected the
verdict.
For the foregoing reasons, we hold that the trial judge
erred in refusing to allow Peeples to introduce psychological
testimony regarding his mental condition for the purpose of
establishing whether he acted in self-defense.6 Accordingly, we
reverse the judgment and remand for a new trial.
Reversed and remanded.
6 In view of our holding on this issue, we need not address
Peeples's other issue.

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Bumgardner, J., dissenting.
I respectfully dissent from the majority's decision.
I believe Zelenak v. Commonwealth, 25 Va. App. 295, 487
S.E.2d 873 (1997) (en banc), controls this case. 	In Zelenak, the
defense was duress, and the issue was whether the threat to the
defendant "caused her reasonably to believe that performing the
criminal conduct was her only reasonable opportunity to avoid
imminent death or serious bodily harm." 	Id. at 300, 487 S.E.2d
at 875. 	This Court, sitting en banc, held that the trial court
properly excluded expert psychological opinion because it was an
opinion on the ultimate issue.
In this case, the defense is self-defense, and the issue is
whether the defendant "reasonably feared death or serious bodily
injury at the time of the shooting." 	However, the majority holds
that the trial court improperly excluded expert psychological
opinion because it was not an opinion on the ultimate issue. 	The
majority dismisses Zelenak in a footnote and adopts the reasoning
of the dissent. 	I do not believe that precedent can be dismissed
so simply. 	In Zelenak the defense was duress; in this case the
defense was self-defense. 	In both, the mental element necessary
to establish the defense was the subjectively reasonable fear of
the defendant. 	If psychological opinion was not permissible in
one, it cannot be permissible in the other.
The majority disregards the clear holding of Stamper v.
Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985). 	That case held

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as follows: 	"we hold that evidence of a criminal defendant's
mental state at the time of the offense is, in the absence of an
insanity defense, irrelevant to the issue of guilt." 	Id. at 717,
324 S.E.2d at 688. 	The Court refused to adopt a diminished
capacity theory of criminal responsibility. 	Further, the Court
interpreted the evidence as an attempt to introduce expert
opinion on the ultimate fact. 	In its conclusion, the Court
stated the fundamental reason for such exclusion:
The state of knowledge in the fields of
medicine and psychiatry is subject to
constant advance and change. The
classifications and gradations applied to
mental illnesses, disorders, and defects are
frequently revised. 	The courts cannot, and
should not, become dependent upon these
subtle and shifting gradations for the
resolution of each specific case.
Stamper, 228 Va. at 716, 324 S.E.2d at 688.
Stamper is controlling precedent. 	It was neither limited
nor refined by Smith v. Commonwealth, 239 Va. 243, 259-60, 389
S.E.2d 871, 879-80, cert. denied, 498 U.S. 881 (1990), as the
majority suggests. 	Rather, it was followed with approval in all
respects as it has been in later cases. 	See Jenkins v.
Commonwealth, 244 Va. 445, 456, 423 S.E.2d 360, 367-68 (1992),
cert. denied, 507 U.S. 1036 (1993).
I believe the trial court correctly excluded this opinion
evidence based on the direct precedent of Zelenak and the
controlling rationale of Stamper. 	I would affirm the
convictions.