Johnson v. Commonwealth, Record No. 1478-17-2

• Docket Nº: Record No. 1478-17-2
• Citation: 824 S.E.2d 14, 70 Va.App. 45
• Case Date: March 05, 2019
• Court: Court of Appeals of Virginia

70 Va.App. 45
824 S.E.2d 14

Kathryn JOHNSON, s/k/a Kathryn Eileen Johnson
v.
COMMONWEALTH of Virginia

Record No. 1478-17-2

Court of Appeals of Virginia, Richmond.

MARCH 5, 2019

James B. Thorsen (ThorsenAllen, LLP, on brief), Richmond, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Russell and AtLee

OPINION BY JUDGE RANDOLPH A. BEALES

70 Va.App. 46

Kathryn Johnson was found guilty of eluding police in violation of Code § 46.2-817. That statute provides that it shall be an affirmative defense if the defendant shows she reasonably believed she was being pursued by a person other than a law-enforcement officer. On appeal, Johnson asserts that, pursuant to the statute’s affirmative defense, the trial court erred in refusing to admit expert testimony concerning her mental state at the time of her violation.

I. BACKGROUND

"Under familiar principles of appellate review, we will state ‘the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.’ " Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d 836 (2002) ).

On January 21, 2016, at approximately 10:30 p.m. Trooper David Pendergrass of the

824 S.E.2d 15

Virginia State Police was traveling southbound on Interstate 85 when he observed a vehicle pass him "at a very high rate of speed." He accelerated in order to catch up with the vehicle, and estimated the vehicle was traveling at approximately 118 miles per hour. At mile-marker 22, Trooper Pendergrass activated his lights. The vehicle "eased over on the right shoulder like they were going to stop" but passed a vehicle on the shoulder and pulled back into the travel lane. Trooper Pendergrass then activated his siren. He continued to pursue the vehicle, which maintained speeds of between 100 and 115 miles per hour until the vehicle

70 Va.App. 47

exited at Exit 15, crossed over the median strip, and then re-entered I-85. The vehicle continued on I-85, then took Exit 12, into the Town of South Hill. The vehicle passed through three traffic lights at a speed of about 100 miles per hour. When the vehicle attempted a right turn at a traffic light, "the back end sort of broke loose on the car and it skipped up on the sidewalk and got hung in the bushes," finally bringing the car to a stop. Trooper Pendergrass estimated that from the time he encountered the car, it had passed about 25 or 30 vehicles before coming to a stop.

Trooper Pendergrass approached the vehicle and found Johnson to be the sole occupant. When he asked her why she did not stop, she eventually responded that her boyfriend was chasing her. He placed her under arrest and transported her to the Meherrin River Regional Jail. While he was transporting her, she said, "There’s a lot of blood," and stated that she had been raped as a child.

Johnson was tried in a bench trial for the charges of felony eluding police, misdemeanor reckless driving, and a traffic infraction of improper passing. She was ultimately convicted on all three counts although only the conviction for eluding police is at issue in this appeal.

At trial, Johnson testified that on January 20, 2016, one day prior to her incident on the interstate, her boyfriend had choked her with the straps of her purse, prompting her to leave her Richmond house where she lived with her boyfriend. The following day, January 21, 2016, she was convinced by her friends that she should obtain a protective order against her boyfriend. She obtained the protective order at approximately 10:00 p.m., and immediately after obtaining the order, received a text from her sister encouraging her to return to her house and talk to her boyfriend. Saying that she feared that her family did not believe her, Johnson decided to drive to Atlanta to visit her godmother, whom she viewed as "more of a neutral party." She testified that she was driving to Atlanta in order to "save [her] life somehow." She stated that when she saw flashing lights behind her "the memories came flooding back"

70 Va.App. 48

of her childhood rape and involvement in child pornography. She thought the lights were "camera flashes," and she thought, "I had to get away or they’re going to kill me." She testified she did not remember hearing any sirens and also testified that the first time she realized that it was the police pursuing her was when she was approached by a police officer after she wrecked her car.

At trial, Johnson called her counselor – Lindsey Bigelow, a licensed clinical social worker – to testify. When Johnson moved to have Bigelow qualified as an expert witness, the Commonwealth objected to the anticipated testimony as pertaining to "mental health status at the time of the offense," which the Commonwealth stated was not permitted in Virginia other than in insanity pleas, as Virginia does not recognize a diminished capacity defense. Johnson argued that the affirmative defense in Code § 46.2-817 – an affirmative defense when the defendant "reasonably believed" she was being pursued by a person other than a law-enforcement officer – should be interpreted so as to allow this testimony. The trial judge recognized Bigelow as an expert in the diagnosis and treatment of post-traumatic stress disorder and permitted Bigelow to proffer the testimony that she would provide. Bigelow then testified that she had met with Johnson for treatment approximately 30 times. She opined that Johnson’s strangulation by her boyfriend was a triggering event that brought back a flood of memories from Johnson’s abuse as a child. Bigelow testified that Johnson’s "primitive brain" took over,

824 S.E.2d 16

to the suppression of her "logical brain," causing her to flee and making her "not able to think straight."

The trial judge allowed both parties to subsequently brief the issue of the admissibility of Bigelow’s proffered testimony. After considering the briefs, the trial judge concluded that "essentially the defense is offering a theory of diminished capacity, which is not recognized in Virginia in the guilt phase." The judge excluded Bigelow’s proffered testimony and ultimately found Johnson guilty of all three charges.

70 Va.App. 49

This appeal followed, in which Johnson assigned error to the trial court’s refusal to admit the testimony of the defendant’s expert regarding post-traumatic stress disorder as part of her affirmative statutory defense pursuant to Code § 46.2-817(B).

II. ANALYSIS

Ordinarily, "the determination of the admissibility of relevant evidence is within the sound discretion of the trial court subject to the test of abuse of that discretion." Henderson v. Commonwealth, 285 Va. 318, 329, 736 S.E.2d 901 (2013)...