COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

FREDERICK B. SMALLWOOD, S/K/A 

 FREDERICK B. SMALLWOOD, SR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1616-96-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Wilford Taylor, Jr., Judge 

 Robert Moody, IV (Segall & Moody, on brief), 

for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 A jury convicted Frederick B. Smallwood (defendant) for 

first degree murder and related use of a firearm. On appeal, 

defendant complains that the trial court erroneously (1) allowed 

the Commonwealth to impeach its own witness, thereby exposing the 

jury to impermissible hearsay,1

 and (2) refused to allow the 

testimony of a defense witness relative to evidence introduced by 

the Commonwealth during its case-in-chief. We agree and reverse 

the convictions. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1We consider this issue together with defendant's contention 

that the court erroneously denied his motion for a mistrial. 
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disposition of the appeal. 

 At approximately 1:50 p.m. on August 31, 1995, Hampton 

Police Officer John B. Proctor was dispatched to defendant's 

residence. Upon arrival, Proctor found defendant standing 

outside the home, and his wife, Debra Smallwood (Debra), dead in 

an upstairs room, the apparent victim of a gunshot wound to the 

head. A gun was resting between the victim's feet, the "muzzle 

point[ed] . . . outward . . . [and] handle pointed . . . away 

from the body," with a single shell casing near her foot. 

 Defendant stated to Proctor that Debra shot herself with the 

weapon following an argument between the two, later elaborating 

that she "got [his] gun off the desk and put it to her head and 

pulled the trigger." Still later, defendant told police that he 

believed Debra had fired the gun accidentally, although she had 

previously expressed suicidal thoughts. Following arrest, 

defendant inquired of police, "What if we were in an argument and 

we fought over the gun and the gun accidentally went off?," and 

answered affirmatively when asked "if that's what happened." 

 The autopsy revealed little, if any, blood on Debra's right 

hand and "minimal spatter" on her right arm. The forensic 

testimony further established that the gun was fired with the 

muzzle against her skin while Debra was seated, leaving only a 

"slight leak on the upper part of the wound." Gunshot residue 

samples (GSRs) taken from both defendant and Debra were negative. 

 Detective Kenneth Seals testified that shell casings ejected 
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from the weapon "usually go out a good distance into the air" and 

that the "casing [near Debra's foot] appeared . . . to be in an 

improper position. The firearm appeared to be in an improper 

position . . . [a]nd based on those matters, . . . we conducted 

an investigation . . . as to whether or not this is an actual 

suicide, or . . . a death by some other means." A firearms 

expert testified for the Commonwealth that testing of the weapon 

revealed that casings were "ejected over to the right and a 

little bit rearward." This witness also testified that 

"different weapons [eject casings] different distances." 

However, the trial court would not allow the testimony of defense 

witness, Peter A. Smerick, an expert "crime scene analyst," to 

explain the "improper" location of the shell casing. The court 

also precluded introduction of the factual results of Smerick's 

test firings of the weapon to establish its precise ejection 

pattern and characteristics. 

 Other Commonwealth evidence disclosed that defendant was 

romantically involved with two women, Nancy Locke and Linda 

Norton, and received money from each, both before and after his 

marriage to Debra. Norton continued to provide defendant 

approximately $400-$500 every two weeks until trial. Called as a 

witness for the Commonwealth, she testified that her prior 

statements to investigators relative to Debra's death were 

"lies," coerced by police. However, over defendant's repeated 

objections, the court permitted the Commonwealth to impeach 
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Norton through excerpts from a transcript of her police 

interview. The Commonwealth also introduced an audio tape of the 

interview, portions of which were actually played to the jury, 

including hearsay highly prejudicial to defendant. 

 The court later reconsidered its ruling and sustained 

defendant's objection to the interview and tape evidence, 

advising the jury: 

 I have since . . . made a decision to sustain 

the defendant's objection to that tape, so 

the tape will not be played for your hearing. 

 Now, there was a statement made in the tape 

attributed to Ms. Norton's mother that you 

heard. I'm going to instruct you to 

disregard that statement. You're not to 

consider that statement. 

I. IMPROPER IMPEACHMENT

 "Code § 8.01-403,2 applicable in criminal as well as civil 

cases, allows impeachment of a party's witness with prior 

inconsistent statements after that witness has been found by the 

 

 2Code § 8.01-403 provides, in pertinent part: 

 

 A party producing a witness shall not be 

allowed to impeach his credit by general 

evidence of bad character, but he may, in 

case the witness shall in the opinion of the 

court prove adverse, by leave of the court, 

prove that he has made at other times a 

statement inconsistent with his present 

testimony; . . . . In every such case the 

court, if requested by either party, shall 

instruct the jury not to consider the 

evidence of such inconsistent statements, 

except for the purpose of contradicting the 

witness. 
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trial court to be adverse."3

 Ragland v. Commonwealth, 16 Va. 

App. 913, 920, 434 S.E.2d 675, 680 (1993) (citing Brown v. 

Commonwealth, 6 Va. App. 82, 85, 366 S.E.2d 716, 718 (1988)); see 

also Beverly v. Commonwealth, 12 Va. App. 160, 163, 403 S.E.2d 

175, 176 (1991); Roberts v. Commonwealth, 230 Va. 264, 269, 337 

S.E.2d 255, 258 (1985). Whether a witness is "adverse" rests 

with the trial court's sound discretion, see Virginia Electric & 

Power Co. v. Hall, 184 Va. 102, 105, 34 S.E.2d 382, 383 (1945), 

and the examining party must first obtain court permission to 

question the witness by cross-examination. See Ragland, 16 Va. 

App. at 920, 434 S.E.2d at 680. 

 On appeal, the Commonwealth correctly concedes that "the 

portion of Norton's testimony in which she was impeached by her 

prior statement to police was done improperly and was erroneously 

introduced." Indeed, the record clearly establishes that the 

Commonwealth failed to follow the provisions of Code § 8.01-403 

and, further, that the court's limiting instruction was both 

untimely and inadequate. 

II. EXPERT TESTIMONY

 "'It is well settled in Virginia that the opinion of an 

expert witness is admissible 'where the jury, . . . is confronted 

 

 3"A prior inconsistent statement is received in evidence 

exclusively to attack the credibility of the witness . . . [and] 

not evidence of the truth of the earlier account and the trial 

court, upon request, must instruct the jury accordingly." Royal 

v. Commonwealth, 234 Va. 403, 405, 362 S.E.2d 323, 324 (1987) 

(citations omitted). 
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with issues' that 'cannot be determined intelligently merely from 

the deductions made and inferences drawn on the basis of ordinary 

knowledge, common sense, and practical experience . . . ."'" 

Hetmeyer v. Commonwealth, 19 Va. App. 103, 109, 448 S.E.2d 894, 

898 (1994) (citations omitted). "The 'expert's testimony is 

admissible not only when scientific knowledge is required, but 

when experience and observation in a special calling give the 

expert knowledge of a subject beyond . . . common intelligence 

and ordinary experience.'" Id. (citations omitted). However, 

"[w]e consistently have held that the admission of expert opinion 

upon an ultimate issue of fact is impermissible because it 

invades the function of the fact finder." Llamera v. 

Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992) 

(citing Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769, 

771-72 (1984)); Cartera v. Commonwealth, 219 Va. 516, 519, 248 

S.E.2d 784, 786 (1978); Webb v. Commonwealth, 204 Va. 24, 33, 129 

S.E.2d 22, 29 (1963); Ramsey v. Commonwealth, 200 Va. 245, 249, 

105 S.E.2d 155, 158 (1958). 

 Here, evidence introduced by the Commonwealth focused on the 

location of the shell casing, suggesting that it was inconsistent 

with suicide. In response, the defense offered Mr. Smerick as an 

expert to address such evidence with proper testimony beyond the 

scope or knowledge of the average juror. Thus, in barring 

Smerick's testimony, the court permitted the Commonwealth to 

"open the door" to an issue with incriminating evidence but 
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refused defendant an opportunity to respond with competent 

evidence. Defendant's criminal culpability in Debra's death was 

the ultimate issue before the court, and the position of the 

ejected shell casing was a circumstance relevant to that 

determination. 

III. HARMLESS ERROR

 While an error committed in the trial of a 

criminal case does not automatically require 

reversal of an ensuing conviction, Code 

§ 8.01-678, once error is established it is 

presumed to be prejudicial. The burden then 

shifts to the Commonwealth to show that the 

error was non-prejudicial. A criminal case 

will be reversed if the Commonwealth fails to 

overcome the presumption of prejudice and 

fails to show that the error was harmless 

beyond a reasonable doubt. 

Pavlick v. Commonwealth, 25 Va. App. 538, 544, 489 S.E.2d 720, 

724 (1997) (citations omitted). "To determine whether an error 

is harmless, this Court 'must review the record and the evidence 

and evaluate the effect the error may have had on how the finder 

of fact resolved the contested issues.'" Charity v. 

Commonwealth, 24 Va. App. 258, 265-66, 482 S.E.2d 59, 62 (1997) 

(citation omitted). "Non-constitutional error is harmless 

'[w]hen it plainly appears from the record and the evidence given 

at the trial that,' 'had the error not occurred, the verdict 

would have been the same.'" Id. (citations omitted). 

 The Commonwealth's instant case was entirely circumstantial. 

 Much of Norton's impermissible hearsay and related evidence was 

not otherwise established in the record, and the jury obviously 
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considered her testimony important,4

 notwithstanding the court's 

inadequate limiting instruction. The gravity of this error was 

compounded when the court disallowed defendant's proper evidence 

with respect to the ejection and position of the shell casing, 

leaving unrebutted an inference from the Commonwealth's evidence 

that the location was inconsistent with suicide. Such rulings 

clearly prejudiced the defendant, and we are unable to find that 

the cumulative effect was harmless. 

 Accordingly, we reverse the convictions and remand the case 

for such further proceedings as the Commonwealth deems 

appropriate. 

 Reversed and remanded.

 

 4Of four inquiries submitted by the jury to the court during 

deliberations, three related to Norton's testimony.