Present: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons, 

JJ., and Whiting, S.J. 

LIVINGSTON PRITCHETT, III OPINION BY 

SENIOR JUSTICE HENRY H. WHITING 

v. Record No. 010030 January 11, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this case we consider the admissibility of proffered 

expert opinions concerning the mental retardation of the 

defendant and the susceptibility of mentally retarded persons 

to suggestive police interrogation in connection with the 

defendant’s contention that his confession was unreliable. 

 Livingston Pritchett, III, was indicted in Montgomery 

County for the capital murder and robbery of Estel Darnell 

Singleton, Sr., and for the use of a firearm in the commission 

of those two crimes. After a jury convicted him of first 

degree murder and of the remaining offenses, it recommended 

penitentiary sentences of life imprisonment for the murder 

conviction and several terms aggregating 13 years for the 

robbery and firearms convictions. Overruling various defense 

motions, the trial court entered judgment on the verdicts. 

 Pritchett appealed from his convictions to the Court of 

Appeals, contending that the trial court erred: (1) in 

admitting his confession because it was not voluntarily given 

and (2) in excluding expert testimony relating to his mental 
retardation. The Court of Appeals affirmed the convictions in 

an unpublished opinion. Pritchett v. Commonwealth, Record No. 

1430-l99-3 (December 12, 2000). We awarded Pritchett this 

appeal limited to the second issue. 

 At 8:00 a.m. on April 30, 1997, Singleton’s body was 

found with a single gunshot wound to his head in the picnic 

area of the Ironto Rest Stop on Interstate Highway 81 in 

Montgomery County. Singleton's pockets had apparently been 

emptied and his wallet and other articles were found scattered 

near his body. Although no automatic teller machine (ATM) 

card was found, there was an ATM receipt from a local bank in 

the wallet. 

 Upon contacting the bank, a police investigator 

ascertained that there had been an attempt to use the ATM card 

two days after Singleton's body was found. The bank also 

furnished the investigators with videotape from its ATM camera 

which showed the man who had attempted to use the ATM card. 

One of the investigators recognized the man as Pritchett. 

Pritchett was known to some of the investigators because he 

had been a witness in a prior murder case and occasionally he 

had paid friendly visits to some of the officers at their 

offices. 

 An investigator arranged to have Pritchett come to the 

State Police Headquarters in Salem by telling him that the 

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investigator needed additional information concerning the 

prior case. The Commonwealth admits that this was a pretext; 

when Pritchett arrived, the questions eventually turned to the 

Singleton murder case. 

Although the record does not reveal the contents of his 

initial statement to the investigators, Pritchett testified at 

trial that he had not been in the rest area where Singleton's 

body was found and he denied killing Singleton. Pritchett 

admitted, however, that he attempted to use Singleton's ATM 

card and that he used one of the credit cards. Pritchett 

claimed that he found these and other articles of personal 

property on the ground near a supermarket located some 

distance from the rest stop. Investigators had found personal 

property belonging to Singleton in Pritchett’s motel room. 

 According to the testimony of Investigator Jerry 

Humphreys, during the investigative interviews Pritchett 

denied killing Singleton until Humphreys asked: "[W]hat went 

so terribly wrong that day that you had to kill Mr. Singleton 

at the Ironto Rest Area[?]" Describing Pritchett’s response, 

Humphreys testified: 

[H]e didn't say anything at first, and then he said with 

anger in his voice, ["]he was [a] faggot, he came to the 

bathroom, pulled a gun and call me a nigger. I ran, we 

struggled, the gun went off["] and he maintained it was 

an accident when Mr. Singleton got shot. 

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 Pritchett later proffered the testimony of two witnesses, 

both of whom qualified as experts in the field of psychology. 

Dr. Bernice Marcopulos, a clinical neuropsychologist, 

testified that tests she administered to Pritchett indicated 

that his intelligence quotient (IQ) was 69, placing Pritchett 

in the range of mildly retarded persons. Both she and Dr. 

Stephen Herrick, a forensic psychologist, testified concerning 

Pritchett's limited communication skills. 

 Dr. Herrick also testified that studies in his field of 

expertise indicated two factors which characterize people who 

"may be prone . . . to false confessions, and those are [1] 

compliance, people [who] generally day to day go along with 

[authority] figures, and [2] interrogative suggestibility 

which is an aspect of where in the moment that somebody is 

asking leading questions that they will go along with it." 

Dr. Herrick opined that "both these factors correlate very 

highly with people [who] have low I.Q.[s]." 

 Dr. Herrick further described a brief test he 

administered to Pritchett by reading him a story which 

Pritchett was asked to remember. The story was contained in a 

paragraph of approximately 40 words. Dr. Herrick then asked a 

series of 25 questions, 20 of which were leading. All the 

questions purported to reflect what was contained in the 

paragraph but the information in some of Dr. Herrick's leading 

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questions was not contained in the story. Yet, Pritchett's 

"yes" or "no" answers to those questions indicated that 

Pritchett believed he knew that information. When Pritchett 

was told that he had not answered a question correctly and 

that he needed to try to answer as best he could, Dr. Herrick 

testified that Pritchett "switched his answers thinking from 

the negative feedback that I was not happy with him so 

therefore . . . not only [is he] answering questions that 

weren't really in the story, but now he's changing his answers 

based on that slight negative feedback that I gave him." 

 Further, in describing Pritchett's limited communication 

skills, his prior friendly relations with the police, and 

other background information, Dr. Herrick also testified: 

. . . I think he just went along with what they said, 

and even at the point of asking to . . . contact his 

mother, or whatever, and got refusals[; he] basically 

was just told no. Well, he's not the type that's 

going to break through the doorway when an officer 

tells him no[;] he's going to sit and listen to him. 

 After hearing and considering the proffer of the 

testimony of the two experts, the trial court ruled that "such 

testimony would invade the province of the jury as to the 

ultimate issue of intent [when the alleged crime was 

committed]," and refused to permit any of it to be presented 

to the jury. The Court of Appeals approved this ruling on the 

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ground that there was no abuse of the trial court's discretion 

in excluding this evidence. 

 On appeal, Pritchett contends that the evidence was 

admissible to assist the jury in assessing the reliability of 

his confession, which conflicted with his trial testimony. 

The Commonwealth responds that the trial court did not abuse 

its discretion in excluding the evidence because "the average 

juror" understands the issues presented by the proffer; thus 

expert opinion on the issues is inadmissable. 

 While the court has the duty to determine whether 

Pritchett's confession was voluntary, it is the jury's duty to 

consider its reliability. Crane v. Kentucky, 476 U.S. 683, 

688 (1986); Williams v. Commonwealth, 234 Va. 168, 175, 360 

S.E.2d 361, 365 (1987), cert. denied, 484 U.S. 1020 (1988). 

"[T]he physical and psychological environment that yielded the 

confession can . . . be of substantial relevance to the 

ultimate factual issue of the defendant's guilt or innocence." 

Crane, 476 U.S. at 689. Under Crane, the Commonwealth and 

Pritchett were each entitled to introduce admissible evidence 

to assist the jury in determining whether the confession was 

reliable. 

 Expert testimony is admissible if the area of expertise 

to which the expert will testify is not within the range of 

the common experience of the jury. Coppola v. Commonwealth, 

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220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 

444 U.S. 1103 (1980). Given the trial court’s conclusion 

"that mental retardation is not within the range of common 

experience of most juries," expert testimony on certain 

aspects of mental retardation should be admissible to assist 

the jury in evaluating the reliability of his confession. But 

the trial court rejected the expert's testimony on the ground 

that it "would invade the province of the jury as to the 

ultimate issue of intent."*

 An expert witness may not express an opinion as to the 

veracity of a witness because such testimony improperly 

invades the province of the jury to determine the reliability 

of a witness. Fitzgerald v. Commonwealth, 223 Va. 615, 630, 

292 S.E.2d 798, 806 (1982), cert. denied, 459 U.S. 1288 

(1983). Dr. Herrick's broad statement that Pritchett "just 

went along with what they said" could be construed as an 

evaluation of the unreliability of Pritchett's confession and 

a comment on the truth of that part of Pritchett's trial 

testimony which differed from his confession. So construed, 

it was an inadmissible statement regarding Pritchett's 

 *

The trial court accepted the Commonwealth’s argument at 

trial that the proffered testimony dealt with Pritchett’s 

mental capacity at the time the alleged crimes occurred. On 

appeal, the Commonwealth correctly perceived that the 

testimony was directed to Pritchett’s mental capacity at the 

time of his alleged confession. 

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veracity which the trial court correctly excluded as an 

invasion of the province of the jury. Coppola, 220 Va. at 

252-53, 257 S.E.2d at 803-04. 

 But this Court has previously held that an expert may 

testify to a witness's or defendant's mental disorder and the 

hypothetical effect of that disorder on a person in the 

witness's or defendant's situation, so long as the expert does 

not opine on the truth of the statement at issue. Fitzgerald, 

223 Va. at 629-30, 292 S.E.2d at 806; Coppola, 220 Va. at 252-

53, 257 S.E.2d at 803-04. In the present case, the balance of 

the expert testimony did not characterize the truth of the 

statement of any witness - it merely presented information on 

subjects unfamiliar to the jury that would assist it in 

determining the reliability of Pritchett's confession. For 

that reason, this testimony should have been admitted. 

 Nevertheless, the Commonwealth argues that any such error 

was harmless. We do not agree with the Commonwealth. If the 

jury concluded that significant portions of the confession 

were not reliable, it might not have been willing to convict 

Pritchett solely on the circumstantial evidence presented by 

the Commonwealth, which was in sharp conflict with his denial 

of having killed Singleton. Given this conflict in the 

evidence, we cannot say that the error was harmless beyond a 

reasonable doubt. 

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 Accordingly, we will affirm the case in part, reverse it 

in part, and remand it to the Court of Appeals with 

instructions to remand the case for a new trial. 

Affirmed in part,

reversed in part,

 and remanded.

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