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. 
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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 
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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 

 1DeGaetano testified that particles of primer residue 

contain lead, barium, and antimonium while particles indicative 

of primer residue contain two of these three elements. 
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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 
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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 
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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 
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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 
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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.
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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. 
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 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 

 recall every discrete movement she made was not unreasonable.3

 

 2That 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). 

 3Significantly, 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 
- 21 - 

(..continued) 

 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. 

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. 
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 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. 
- 23 - 

 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.