COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Lemons 

Argued at Salem, Virginia 

JAMES CARL McCULLOCH 

 OPINION BY 

v. Record No. 0863-98-3 JUDGE RUDOLPH BUMGARDNER, III 

 MAY 25, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

Roger Dalton, Senior Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 James C. McCulloch appeals his conviction of first degree 

murder of his wife. He argues that the trial court erred (1) in 

denying his request for a second expert to evaluate his sanity 

at the time of the offense, and (2) in not permitting lay 

witness testimony about his sanity at the time of the offense. 

Concluding that the trial court did not err, we affirm. 

 The defendant’s wife entered a grocery store bleeding from 

a stab wound. Just as she entered, two customers saw a man run 

past the front of the store. They chased him and saw him 

holding a knife. The two followed the man, who turned out to be 

the defendant, to his home. When the police arrived, they found 
a bloodstained knife in the kitchen sink, and the defendant 

admitted to them that he stabbed his wife. 

Pursuant to the defendant’s motion, the trial court 

appointed Dr. Jerome S. Nichols, a licensed clinical 

psychologist, to evaluate defendant's competency to stand trial 

and mental state at the time of the offense. Dr. Nichols 

reported that the defendant was competent to stand trial. Only 

the defendant's attorney was given the evaluation on sanity at 

the time of the offense. It would show that the defendant was 

sane. 

The defendant attempted suicide while in jail. Following 

further evaluation, Dr. Nichols found the defendant no longer 

competent to stand trial. The trial court continued the trial 

and committed him to Central State Hospital. After treatment, 

the hospital found the defendant competent and returned him for 

trial. The trial court again continued the trial when Dr. 

Nichols indicated the defendant needed additional treatment. 

Though the doctor changed that opinion, the trial court still 

continued the case to allow additional medical treatment. 

 The defendant filed an insanity defense notice on June 25 

pursuant to Code § 19.2-168. The Commonwealth then moved for an 

examination of the defendant by a qualified mental health expert 

pursuant to Code § 19.2-168.1. The trial court granted the 

motion and returned the defendant to Central State Hospital for 

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the evaluation. That evaluation found him sane at the time of 

the offense. 

 On the day before the trial, the defendant moved for 

appointment of a psychiatrist to determine sanity at the time of 

the offense. The trial court ruled that the initial appointment 

of Dr. Nichols, a psychologist, had satisfied all legal 

requirements and that the defendant was not entitled to another 

court-appointed expert. The trial court found that the 

defendant offered no more than a possibility that a second 

opinion would reveal anything different. The trial court denied 

the motion but emphasized that it would reconsider its ruling at 

any time the defendant presented a factual basis indicating by 

more than a mere possibility that a second opinion would assist 

the defense. 

 At the pretrial hearing the day before trial, the trial 

court ruled that unless the defendant presented expert testimony 

that he suffered from a disease of the mind, he could not 

present evidence that he was insane at the time of the offense. 

Until the defendant proffered expert testimony that he was 

insane under the law of Virginia, he could not offer during the 

guilt phase testimony about his mental state at the time of the 

offense. 

The defendant also sought to prove insanity through the 

testimony of lay witnesses who observed his behavior, demeanor, 

and actions. The defendant proffered the testimony of several 

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witnesses. The court ruled that the affirmative defense of 

insanity required the defendant to introduce “into evidence [] 

someone’s opinion that the defendant is ‘insane’ . . ., [and] 

all that a lay witness can do is to give observations about 

facts.” Having no expert opinion that the defendant was insane, 

the trial court precluded the defendant from introducing other 

testimony about his mental condition at the time of the offense. 

 During the trial, the defendant proffered that one witness 

would testify that after his arrest the defendant spoke to her 

as if she were his wife. Another would testify that before the 

murder he “didn’t seem right.” Still another would testify that 

a month before the murder the defendant “was not acting like 

himself.” The testimony of seven jail inmates would indicate 

variously that the defendant “was crazy”; “acted very nervous 

all the time like he didn’t have it all together”; “cried a 

lot”; “would sit in his cell and bark like a dog”; “acts like he 

is in another world and just kind of hangs to himself”; “acted 

very depressed”; and “acted like he had a split personality.” 

Two additional witnesses would testify that the defendant lost 

forty pounds, thought his wife was alive, had blackouts and was 

not sleeping and that the defendant lost sixty pounds and “hears 

and sees things.” 

 The trial court excluded some lay testimony because it 

concerned the defendant’s conduct and demeanor after the offense 

was committed. It excluded other testimony because it was 

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impermissible lay opinion. The trial court permitted one lay 

witness to testify about the defendant’s habits before the 

murder because it corroborated the defendant’s testimony. It 

also permitted the defendant to testify about his state of mind 

at the time of the offense. 

Indigent defendants are entitled to the appointment of a 

psychiatrist to assist in their defense, but this right is not 

absolute. See Ake v. Oklahoma, 470 U.S. 68, 77 (1985). The 

defendant must demonstrate “that his sanity at the time of the 

offense is to be a significant factor at trial . . . .” Id. at 

83. A request unaccompanied by a showing of reasonableness is 

properly denied. See Caldwell v. Mississippi, 472 U.S. 320, 323 

n.1 (1985). The trial court did appoint an expert, Dr. Nichols, 

who determined that, in his opinion, the defendant was sane at 

the time of the offense. 

The defendant argues that his case required the appointment 

of an additional expert because Dr. Nichols is not a 

psychiatrist. The Supreme Court in Ake recognized the 

obligation of the trial court to provide a defendant with “one 

competent psychiatrist.” Ake, 470 U.S. at 79. However, that 

Court “did not intend to restrict to psychiatrists those mental 

health professionals who could perform evaluations of insanity 

at the time of the offense.” Funk v. Commonwealth, 8 Va. App. 

91, 96, 379 S.E.2d 371, 373 (1989). 

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The only reason given to support the request for 

appointment of a psychiatric expert was the suggestion that a 

psychologist was not competent to evaluate any relevant effect 

upon defendant resulting from a previous bullet wound to his 

head. Dr. David Hartman, the psychiatrist who treated the 

defendant for ten years after that shooting, stated that the 

gunshot wound had not entered the brain and had caused no 

organic brain damage. When Dr. Hartman was unable to offer an 

opinion about the defendant’s mental state at the time of the 

offense, the trial court excluded his testimony. 

The trial court did not err in refusing to appoint a 

psychiatrist as a second expert. The court found that the 

defendant had not established a factual basis to support his 

request. Determining whether the defendant has made an adequate 

showing is a decision that lies within the trial court's 

discretion. See Husske v. Commonwealth, 252 Va. 203, 211, 476 

S.E.2d 920, 926 (1996). 

The trial court did not abuse its discretion. There was no 

indication that a further evaluation would turn out differently. 

The basis for the request was supposition that was not supported 

by the defendant’s own doctor. When denying the motion, the 

trial court emphasized that it would reconsider the ruling if 

the defendant presented anything to indicate there was more than 

the mere possibility that a second expert would conclude 

differently. The defendant presented nothing to suggest more 

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than a mere possibility. All medical evaluations concluded that 

the defendant was sane at the time of the offense. The first 

appointment met the obligation to provide a mental health 

expert, and the defendant never showed a particularized need for 

an additional evaluation. See id. at 213, 476 S.E.2d at 926. 

Next, the defendant argues that the trial court erred in 

ruling that expert testimony was a necessary predicate to his 

asserting an insanity defense and erred in excluding the 

proffered lay witness testimony. The trial court held the 

defendant had to present expert testimony before he could 

introduce lay evidence to support his insanity defense. We 

conclude that the holding was correct in this case. The 

evidence did not support the defendant’s insanity defense, 

though in an appropriate case factual testimony alone may be 

sufficient to establish the defense. 

The defendant must prove to the satisfaction of the jury 

that he was insane at the time of the offense. See Christian v. 

Commonwealth, 202 Va. 311, 316, 117 S.E.2d 72, 75-76 (1960). He 

has the burden of affirmatively raising the issue of insanity 

and proving his mental disease or defect by a preponderance of 

the evidence. See Taylor v. Commonwealth, 208 Va. 316, 322, 157 

S.E.2d 185, 189-90 (1967); Herbin v. Commonwealth, 28 Va. App. 

173, 183, 503 S.E.2d 226, 231 (1998). Herbin stated that both 

facets of the M'Naghten test require a showing of a disease of 

the mind. “Although lay testimony may support a plea of 

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insanity, ‘it is generally recognized that it is advisable to 

adduce expert testimony to better resolve such a complex 

problem.’” Herbin, 28 Va. App. at 183, 503 S.E.2d at 231 

(quoting Shifflett v. Commonwealth, 221 Va. 760, 769, 274 S.E.2d 

305, 311 (1981)). 

“While lay witnesses may testify to the attitude and 

demeanor of the defendant, ‘[l]ay witnesses cannot express an 

opinion as to the existence of a particular mental disease or 

condition.’” Id. (quoting Mullis v. Commonwealth, 3 Va. App. 

564, 573, 351 S.E.2d 919, 925 (1987)). In Mullis, 3 Va. App. at 

573, 351 S.E.2d at 925, a lay witness was not permitted to 

explain the defendant's actions by testifying that he was 

“paranoid” because this might suggest to the jury that the 

defendant had been diagnosed “paranoid.” Here, no medical 

evidence supporting an insanity defense was introduced, and the 

lay testimony defendant proffered was insufficient to establish 

a prima facie case for an insanity defense. 

 The trial court excluded lay witness testimony that 

addressed the defendant’s state of mind when offered for the 

purpose of establishing his sanity at the time of the offense. 

The court reserved ruling on whether the same testimony could be 

admissible for a different purpose. At trial, however, the 

defendant never offered lay testimony for the purpose of 

determining whether the defendant acted with malice. We hold 

that the trial court did not err in excluding testimony for the 

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purpose for which it was offered, and we will not consider an 

argument presented by a party for the first time on appeal. See

Rule 5A:18. 

 Concluding that the trial court did not err, we affirm the 

conviction. 

Affirmed.

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