COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Lemons 

Argued at Norfolk, Virginia 

ROSE MARIE OUTLAND JONES 

 OPINION BY 

v. Record No. 2159-97-1 JUDGE JAMES W. BENTON, JR. 

 OCTOBER 27, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 Michael Rosenberg for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 A jury convicted Rose Marie Outland Jones of murder and use 

of a firearm in the commission of murder. Jones contends the 

convictions should be reversed because the trial judge denied her 

the opportunity to present evidence in support of her insanity 

defense when she refused to enter a plea of "not guilty by reason 

of insanity." For the reasons that follow, we reverse the 

convictions and remand for a new trial. 

 I. 

 Rose Marie Outland Jones was indicted for murder and use of 

a firearm in the commission of murder. Prior to trial, she 

timely notified the attorney for the Commonwealth that she would 

put in issue her sanity at the time of the charged offenses and 

would present psychiatric evidence in support of that defense. 

When Jones was arraigned, she pled not guilty. 

 The Commonwealth's evidence at trial included Jones' taped 
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confession to police. In her confession, Jones said she and her 

husband had been married two months and were having marital 

problems. Jones said she purchased a gun a month before she 

married her husband because she was afraid of him. She had 

previously obtained warrants for his arrest for stalking and 

assault but dropped both charges because she was afraid of him. 

 After trying to make the marital relationship work, she 

decided it would not work. Her husband was "pressuring" her to 

live a life-style she did not like. On the day of the shooting, 

they argued because Jones wanted to separate from him. She told 

him that she was having "problems" and needed to get away. 

Jones' husband did not want her to leave him and did not "want to 

go nowhere." She said her husband, who had been violent toward 

her in the past, began to get "upset." In response to his 

reaction, Jones went to the bedroom, retrieved her gun, loaded 

it, and hid it in a laundry hamper beside her bed. When her 

husband entered the bedroom and suggested they go for a ride, 

Jones declined and told him she believed he intended to kill them 

both. Because Jones thought her husband was going to get his 

gun, she grabbed her gun and tried unsuccessfully to fire it at 

him. She then pulled back the slide and shot him. Jones said 

she followed her husband out the door and was going to shoot him 

again because she wanted to kill him. When he fell to the 

ground, Jones dialed 911 and reported the incident to the police. 

 She then called the emergency number she had been given to use 
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when she needed to contact a counselor at the Community Help 

Center. 

 Jones' neighbor testified that she went to her door after 

she heard a gunshot. She saw Jones' husband stagger from his 

front door and heard him say, "Girl, you shot me," or "Why did 

you shoot me?" The neighbor saw Jones with a gun in her hand and 

watched Jones' son wrestle the gun from her. When the police 

arrived and handcuffed Jones' son, Jones told the police, "He 

didn't have anything to do with it - I did." 

 At the close of the Commonwealth's case, the Commonwealth 

objected to Jones defending both on the grounds of self-defense 

and insanity. The trial judge required Jones' defense counsel to 

elect whether to proceed on a plea of not guilty based on 

self-defense or not guilty by reason of insanity. The trial 

judge also ruled that he was "not going to allow the expert to 

say [Jones was] insane if [Jones was] not pleading 'not guilty by 

reason of insanity.'" Jones' counsel then notified the judge 

that Jones would not proceed with an insanity defense because of 

the judge's ruling. Jones proffered to the trial judge an oral 

summary of the testimony of Dr. Alice Twining, a clinical 

psychologist, and Dr. Twining's written report of her forensic 

evaluation of Jones. 

 In Jones' defense, several witnesses related the 

difficulties between Jones and her husband. The witnesses 

testified that Jones' husband abused and harassed Jones and had 
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threatened to kill her. A witness testified that in early 1996 

she heard Jones' husband say that "before he let [Jones] go he 

would kill her first." Jones' son testified that Jones' husband 

threatened to kill Jones and often carried a gun. A police 

officer testified that three months prior to Jones' husband's 

death, Jones obtained a warrant for her husband's arrest for 

stalking her. 

 The jury convicted Jones of murder and use of a firearm in 

the commission of murder. 

 II. 

 Code § 19.2-254 provides that "[a]n accused may plead not 

guilty, guilty or nolo contendere." Neither that statute nor any 

other statute authorizes or requires an accused to enter a plea 

of "not guilty by reason of insanity." Indeed, Code § 19.2-168, 

which contains the statutory requirement for preserving the 

defense of insanity, does not require an accused to plead "not 

guilty by reason of insanity." In pertinent part, Code 

§ 19.2-168 provides as follows: 

 In any case in which a person charged with a 

crime intends (i) to put in issue his sanity 

at the time of the crime charged and (ii) to 

present testimony of an expert to support his 

claim on this issue at his trial, he, or his 

counsel, shall give notice in writing to the 

attorney for the Commonwealth, at least 

twenty-one days prior to his trial, of his 

intention to present such evidence. 

Id.

 The Attorney General candidly concedes that "[t]he 
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Commonwealth knows of no legal requirement that a defendant enter 

a formal plea of 'not guilty by reason of insanity' in order to 

be permitted to present evidence of insanity." Furthermore, the 

parties agree that Jones complied with the statutory notice 

requirements. In view of the evidence in the record that Jones 

complied with the requirements of Code §§ 19.2-254 and 19.2-168, 

we hold that the trial judge erred when he ruled that the trial 

could not proceed in an orderly fashion on Jones' insanity 

defense unless Jones entered a formal plea of "not guilty by 

reason of insanity." 

 Arguing that "Jones' evidence of insanity was weak at best" 

and insignificant in comparison to Jones' confession, the 

Commonwealth contends the exclusion of Dr. Twining's testimony 

was harmless. We disagree. The record contains a proffer of Dr. 

Twining's expected expert witness testimony and her written 

report. This proffer indicates that Dr. Twining, who examined 

Jones pursuant to a circuit judge's order, was prepared to 

testify concerning Jones' mental state at the time of the 

offense. Dr. Twining would have testified that Jones' illness 

made her unable to understand the nature and consequences of her 

acts and unable to understand right from wrong. 

 Dr. Twining's report detailed Jones' history of psychiatric 

treatment, including treatment at Eastern State and Maryview 

Psychiatric Hospitals. The report also disclosed that Jones had 

suffered at least two "catatonic episodes." Dr. Twining reported 
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that Jones "suffers from an Atypical Depression with Psychotic 

Features, Post-Traumatic Stress Disorder, a Dissociative Disorder 

and a Personality Disorder which renders her mentally incompetent 

in times of extreme stress." The portion of the report styled 

"Mental State at Time of Offense" and the proffer of Dr. 

Twining's expected testimony clearly establish that Dr. Twining 

could have provided an evidentiary basis upon which the jury 

might have found that Jones was insane at the time of the 

offense.1

 See Shifflett v. Commonwealth, 221 Va. 760, 769, 274 

 

 1In deciding whether a person can be criminally insane yet 

intend to commit a criminal act, the Supreme Court stated the 

following: 

 On the surface, there appears to be a 

blatant inconsistency in concluding, as we 

do, that a person may be criminally insane 

when shooting another, and thus avoid full 

criminal sanctions, and yet that same 

individual can be denied insurance coverage 

because he "intended" to shoot his victim. A 

more careful analysis, however, will reveal 

there is no inconsistency at all. 

 In the law, there are many situations in 

which a person may intentionally injure or 

kill another and not be subject to criminal 

punishment. For example, an individual may 

kill in self-defense. The executioner may 

kill with the sanction of the State. A 

soldier may injure or kill under rules of 

combat. This conduct is intentional, but it 

is also excusable. Likewise, an individual 

may be excused from penalty if he is insane 

at the time he commits a criminal act. As 

here, he may do the act with every intention 

of consummating it, but when it is shown that 

he was mentally ill, he is excused from the 

imposition of the usual sanctions. 

Johnson v. Insurance Co. of N. America, 232 Va. 340, 348, 350 

S.E.2d 616, 620-21 (1986). 
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S.E.2d 305, 310 (1981) (noting that '[i]n Virginia . . . insanity 

is an affirmative defense that the defendant must establish to 

the satisfaction of the fact finder"). Our Supreme Court has 

"generally recognized that it is advisable to adduce expert 

testimony to better resolve such a complex problem [as 

insanity]." Id. Furthermore, the opinion of an expert witness 

often "carries great weight with the jury and could very well 

have been the decisive factor in their minds in determining the 

defendant's guilt." Callahan v. Commonwealth, 8 Va. App. 135, 

140, 379 S.E.2d 476, 479 (1989). We cannot say from this record 

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). 

 Accordingly, we reverse the convictions and remand for a new 

trial. 

 Reversed and remanded.