COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

JOHN JOSEPH WARMOUTH 

 OPINION BY 

v. Record No. 2863-97-2 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 13, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF POWHATAN COUNTY 

Thomas V. Warren, Judge 

 Michael Morchower; Anthony G. Spencer 

(Morchower, Luxton & Whaley, on briefs), for 

appellant. 

 Daniel J. Munroe, Assistant Attorney General 

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

for appellee. 

 On appeal from his convictions of aggravated malicious 

wounding, in violation of Code § 18.2-51, and statutory burglary 

while armed with a deadly weapon, in violation of Code § 18.2-90, 

John Joseph Warmouth contends that the trial court erred: (1) in 

admitting the Commonwealth’s expert testimony on palm print 

identification, (2) in disallowing Warmouth’s expert testimony 

opposing the Commonwealth’s palm print comparison testimony, (3) 

in admitting testimony that Warmouth had cut a neighbor’s 

telephone line soon after the incident, (4) in admitting evidence 

that the victim’s jewelry and mementos had been damaged several 

months earlier, (5) in admitting testimony from a telephone 

company repairman that the victim’s telephone line had been cut by 
someone who knew the exact line configuration, (6) in admitting 

testimony that Warmouth had told friends where the spare key to 

the house was kept, (7) in holding the evidence sufficient to 

support Warmouth’s convictions, (8) in abusing its discretion by 

denying defense counsel access to defense witnesses before they 

testified, and (9) in failing to order a mistrial following 

improper argument by the Commonwealth’s Attorney. For the reasons 

set forth herein, we reverse and remand for a new trial, if the 

Commonwealth be so advised.1

I. BACKGROUND

“On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences deducible therefrom.” Martin v. Commonwealth, 4 Va. 

App. 438, 443, 358 S.E.2d 415, 418 (1987). 

Mary Ann Worsham and John Joseph Warmouth were divorced in 

1995. During their subsequent tumultuous relationship, Warmouth 

slammed his hand through a glass door when Worsham informed him 

she planned to date while they were separated, threatened 

Worsham with a gun, and told her “if I don’t like what’s going 

on . . . in the future, I’ll kill you and whoever you’re with.” 

In January 1996, Worsham discovered some of her jewelry was 

broken, some was missing, and a photograph of her and Warmouth 

 1

 Because we reverse and remand for evidentiary reasons, we 

do not address the sufficiency of the evidence. 

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had been smashed. In April 1996, Worsham called the police to 

force Warmouth to leave her house. 

On July 23, 1996, Worsham put her children to bed, locked 

the doors, and retired to sleep. Sometime later, she was 

brutally beaten in her bed, rendering her comatose and causing 

her permanent injury. She remembers nothing about the incident 

or her attacker. 

When investigating the crime scene, the police observed 

that the telephone line serving an extension to Worsham’s 

bedroom had been cut. This line had been installed by Warmouth. 

A bloody handprint impression was found on Worsham’s bed sheet. 

There was no evidence of forced entry. Warmouth retained a key 

to the house, and he knew that a spare key was hidden in a “fake 

rock” near the front door. No other physical evidence suggested 

the identity of the attacker. 

During questioning by police, Warmouth became agitated when 

told that Worsham would soon be able to answer questions. 

II. EVIDENTIARY ISSUES

A. Robert Hallett’s Testimony

The Commonwealth called as a witness Robert Hallett, a 

forensic scientist, who testified as an expert in the field of 

impression comparison. Over Warmouth’s objection, Hallett 

testified that he had compared the bloody handprint found on 

Worsham’s bed sheet with a known handprint taken from Warmouth 

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and had found them similar. He described his comparison of the 

prints, identifying numerous points of similarity. He testified 

that the similarity between the prints did not identify Warmouth 

as the person whose handprint was on the bed sheet, but merely 

established that the print could have been made by Warmouth’s 

hand. He testified that Ms. Worsham’s hand could not have left 

the print. 

Warmouth challenged Hallett’s qualifications and the 

reliability of impression comparison. He argued that Hallett’s 

conclusions were not sufficiently specific to have probative 

value. 

The trial court made a proper threshold determination of 

Hallett’s qualifications in his discipline and as to the 

reliability of impression comparison. The record supports its 

determination that both were sufficient. See Spencer v. 

Commonwealth, 238 Va. 295, 313, 384 S.E.2d 785, 796 (1989), 

cert. denied, 110 S. Ct. 1171 (1990). 

Although Hallett’s determinations did not identify Warmouth 

specifically as the person whose handprint was on the bed sheet, 

by identifying similarity between that print and Warmouth’s, and 

by excluding Ms. Worsham as a person who could have left the 

print, Hallett’s conclusions addressed and shed light upon the 

identification of the depositor of the print. His conclusions 

fell into the same category as footprint, fiber, and substance 

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analysis. Information that sheds light upon an issue at trial 

is relevant. See Cash v. Commonwealth, 5 Va. App. 506, 510, 364 

S.E.2d 769, 771 (1988). The trial court did not err in 

admitting Hallett’s testimony into evidence. 

B. Robert Hazen’s Testimony

Hazen identified himself as an expert in fingerprint 

identification but not as an expert in impression comparison. 

He did not refute Hallett’s findings that the handprint on the 

bed sheet was similar to Warmouth’s handprint and that Worsham 

could be excluded as the maker of the print, because he had not 

himself analyzed the impressions. Warmouth sought to have Hazen 

testify that impression comparison was scientifically unsound 

and unreliable. The trial court rejected that testimony. We 

find no error in that ruling. Hazen was not qualified as an 

expert in the field of impression comparison and, thus, could 

not render an expert opinion in that discipline. Furthermore, 

the scientific reliability of impression comparison related to 

the admissibility of Hallett’s testimony. The trial court had 

already considered that question and had ruled on it. See

Spencer, 238 Va. at 313, 384 S.E.2d at 796. 

 C. Testimony of Wendy and Joseph Hodges 

Over Warmouth’s objection, Wendy and Joseph Hodges 

testified that on the night of August 5, 1996, about two weeks 

after the attack on Ms. Worsham, Warmouth came to their home, 

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saying that his vehicle had broken down and he needed 

assistance. Mr. Hodges went to get dressed. When he returned 

to the door, Warmouth was gone. Shortly thereafter, Mr. and 

Mrs. Hodges found that their telephone line had been cut. 

Warmouth contends that the Hodges’ testimony was irrelevant 

and highly prejudicial. We agree. While the incident described 

by the Hodges supported the inference that Warmouth had cut 

their telephone line, the evidence established no connection 

between this incident and the attack on Ms. Worsham. The trial 

court erred in admitting the Hodges’ testimony. 

D. Broken Picture Frame and Missing Jewelry

Over Warmouth’s objection, Ms. Worsham testified that, in 

January 1996, she returned home to discover that a picture 

frame, enclosing a picture of herself and Warmouth, had been 

shattered, some of her jewelry was damaged, and several pieces 

of jewelry that Warmouth had given her were missing. Not only 

was this incident remote in time, but no evidence linked it to 

Warmouth. Thus, this evidence was irrelevant and should not 

have been admitted. 

 E. Gene Bradbury’s Testimony

Gene Bradbury, a telephone repairman employed by Bell 

Atlantic, testified that only a person with prior knowledge of 

Ms. Worsham’s house wiring could have known which wire to cut in 

order to disable the telephone service to her bedroom. Warmouth 

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had installed the extension. Bradbury’s testimony was probative 

as to whether Warmouth cut the wire and, therefore, was properly 

admitted. 

F. Matthew Bennett’s Testimony

 Gordon Batterson, testifying as a witness for Warmouth, 

denied telling Matthew Bennett that Warmouth had told him where 

the spare key to Ms. Worsham’s house was hidden. Bennett, 

called as a rebuttal witness by the Commonwealth, testified that 

the conversation occurred. This was purely rebuttal testimony, 

responsive to an issue injected by Warmouth, and was properly 

admitted. Warmouth sought no limiting instruction. 

III. COUNSEL’S ACCESS TO WITNESSES

 At the commencement of the trial, on Warmouth’s motion, the 

trial court ordered the witnesses sequestered. The trial court 

instructed the Commonwealth’s witnesses as follows: 

I do not want you to discuss anything at all 

with any of the three attorneys involved in 

the case. From here on, you are off limits 

to the attorneys. 

The trial court instructed the defense witnesses as follows: 

Do not discuss the case at all in any way 

with the attorneys involved in the case. 

Warmouth did not object to those instructions. 

 After the trial began, two defense witnesses, Robert Hazen 

and Lawrence Farmer, arrived at the courthouse from out of town. 

Citing its sequestration ruling, the trial court refused to 

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allow defense counsel to talk with these witnesses. Warmouth 

contends that this ruling violated his Sixth Amendment right to 

assistance of counsel. 

 The purpose of excluding the witnesses 

from the courtroom is . . . to deprive a 

later witness of the opportunity of shaping 

his testimony to correspond to that of an 

earlier one. Wigmore on Evidence, 3d Ed., 

Vol. VI, Sec. 1838, p. 352. While usually 

all persons come within the rule of 

exclusion, the authorities agree that the 

court, in the exercise of its sound judicial 

discretion, may make exceptions thereto. In 

the absence of a showing that there has been 

an abuse of such discretion, or that the 

accused was prejudiced thereby, such ruling 

will not be reversed on appeal. 

Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279 

(1950). 

 Orders excluding witnesses during the 

taking of testimony play an important part 

in our system of justice and should be 

enforced. However, if their enforcement is 

to work justice and not injustice, care must 

be taken by the trial courts and by counsel 

to insure that those orders are plainly 

announced and that their effect is made 

clear to all [parties involved]. 

Jury v. Commonwealth, 10 Va. App. 718, 722, 395 S.E.2d 213, 216 

(1990). 

 The trial court ordered the sequestration of witnesses on 

Warmouth’s motion. While its admonition against communication 

between counsel and the witnesses went beyond the safeguards 

necessary to effect the sequestration rule, Warmouth did not 

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object. Those admonitions were plainly stated. In seeking 

permission to speak with the witnesses, Warmouth’s counsel 

offered no explanation as to why he had not conferred with the 

witnesses earlier, as to why he needed to confer with them 

during trial, or as to what prejudice, if any, would be caused 

Warmouth’s defense by denying him access to the witnesses. No 

such explanation or showing of prejudice appears from the 

record. 

 Witness preparation is a vital part of counsel’s assistance 

to the defendant. “[A]n accused has the unqualified right to 

‘call for evidence in his favor.’ This includes the right to 

prepare for trial which, in turn, includes the right to 

interview material witnesses and ascertain the truth.” Bobo v. 

Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213, 215 (1948) 

(decided under Section 8, Article I of the Virginia 

Constitution, which affords protections identical to the Sixth 

Amendment of the United States Constitution). 

 The exercise of sound judicial discretion requires that an 

accused be afforded a reasonable opportunity to prepare and 

present his case. Upon a showing of proper cause, this 

principle requires a trial court, with proper admonition, to 

afford counsel access to witnesses who have not yet begun to 

testify. However, in the absence of a showing of proper cause 

or of prejudice that would result from a denial of access, we 

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find no reversible error in the trial court’s denial of access 

in this case. 

 Warmouth argues that the denial of access to the witnesses 

impaired his counsel’s ability to represent him effectively and 

was thus a denial of his Sixth Amendment right to counsel. 

 [In] determining whether counsel’s 

legal assistance to his client was so 

inadequate that it effectively deprived the 

client of the protections guaranteed by the 

Sixth Amendment . . . the “benchmark . . . 

must be whether counsel’s conduct so 

undermined the proper functioning of the 

adversarial process that the trial cannot be 

relied on as having produced a just result.” 

More specifically, a defendant must show 

“that counsel’s performance was deficient” 

and that “the deficient performance 

prejudiced the defense.” 

Perry v. Leeke, 488 U.S. 272, 279 (1989) (citations omitted). 

The record reflects no prejudice resulting to Warmouth’s defense 

from the denial of his counsel’s access to the witnesses. 

Warmouth’s ability to call the witnesses was not lost. He did, 

in fact, present them. The record discloses no area of inquiry 

that was foreclosed and contains no suggestion that defense 

counsel was hindered in his ability to examine the witnesses 

fully. 

IV. CLOSING STATEMENTS MADE BY COMMONWEALTH’S ATTORNEY

 In his closing argument, counsel for the Commonwealth 

stated, in part: 

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That’s what he is hired to [sic] for by the 

defendant to do, to do a masterful job, and 

he did. And the Commonwealth compliments 

him. And the masterful job he is designed 

to do and is hired to do is to try to throw 

as many red herrings at you to confuse you, 

to drag things out, to make thing appear 

differently than they really are. He really 

doesn’t want you to concentrate – 

Warmouth contends that these remarks about defense counsel were 

improper. However, his objection to these remarks was 

sustained. He requested no further relief in the form of a 

curative instruction or a mistrial. Thus, he has preserved no 

issue for us to consider. Because the question may arise on 

remand, we note that this argument was improper. It did not 

address the issues of the case. On remand, counsel should 

refrain from such remarks and should address only the elements 

and issues of the case. 

 For the reasons stated, we reverse the convictions and 

remand the case for a new trial consistent with this opinion, if 

the Commonwealth be so advised. 

 The judgment of the trial court is reversed and remanded. 

 Reversed and remanded.

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