Rankin v. Commonwealth

Decision Date24 April 2018
Docket NumberRecord No. 1671-16-1
CourtVirginia Court of Appeals


Record No. 1671-16-1


APRIL 24, 2018


Present: Judges Humphreys, Decker and O'Brien
Argued at Norfolk, Virginia


Johnny E. Morrison, Judge

James O. Broccoletti (Randall J. Leeman, Jr.; Nicole A. Belote; Zoby, Broccoletti & Normile, P.C.; Kozak, Davis, Renninger & Belote, P.C., on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Stephen D. Rankin appeals his conviction for voluntary manslaughter. He argues that the trial court erred by not allowing his witness to testify as an expert. The appellant also argues that the trial court erred by denying his motion for a mistrial based on juror contact with a courtroom observer and not conducting additional investigation into the alleged misconduct. For the reasons that follow, we affirm the conviction.


The appellant, who was a Portsmouth police officer at the time of the offense, was charged with first-degree murder and the use of a firearm in the commission of a felony. At trial, the Commonwealth presented evidence that in response to a call regarding a suspected shoplifting incident, the appellant attempted to detain William Chapman (the victim), the

Page 2

purported shoplifter, in a parking lot. The pair struggled, and the appellant deployed his Taser. Despite the appellant's use of his Taser, the victim continued to resist.1 The appellant then drew his firearm and ordered the victim to get on the ground. He responded by making a quick and aggressive gesture toward the appellant, who fired his gun twice, hitting the victim's chest and head. The victim died from his wounds.

The jury found the appellant guilty of voluntary manslaughter and not guilty of the use of a firearm offense. The trial court fixed the sentence at two and one-half years in prison, as recommended by the jury, and imposed an additional post-release "term" of one year, which it suspended.


The appellant raises two distinct assignments of error. He argues that the trial court erred by not allowing a criminal justice professor to testify as an expert on the subject of use of force by police officers. He also contends that the trial court erred by denying his motion for a mistrial based on contact between a juror and a courtroom observer and not further investigating that contact.

A. Defense Witness Proffered Testimony

The appellant suggests that the trial court erred by refusing to allow his witness, Professor Michael Lyman of Columbia College in Missouri, to testify as an expert on the subject of police use of force. He argues that the trial court misapplied the law by excluding the witness' testimony in part because he had not previously testified in Virginia. The appellant also

Page 3

contends that the trial court erred in excluding Lyman's expert testimony even though he had sufficient knowledge and experience to qualify as an expert.2

1. Basis for Trial Court's Ruling

The appellant argues that the court erroneously held that Lyman did not qualify as an expert witness due to his lack of previous experience testifying in Virginia. See generally Va. R. Evid. 2:702(a)(i), (ii) (explaining in part that a witness may "qualif[y] as an expert by knowledge, skill, experience, training, or education"). This conclusion is not supported by the record when viewed in its entirety.

The trial court ruled that Lyman could not testify as an expert and then commented, "[P]lus he's never testified as an expert in Virginia on this issue." When the prosecutor stated, "I don't think he's ever testified," the trial judge responded, "That's not the issue." The court also noted that the proffered testimony was "getting kind of close to the ultimate" issue of fact to "be decided by the jury." When the appellant raised the issue of Lyman's expert testimony again, the trial court confirmed its earlier ruling, stating, "[I]t was my decision that I thought it would invade the province of the jury with respect to the ultimate issue, and also he had never qualified as an expert in the State of Virginia. That's not required, but whether or not one is an expert is within the discretion of the Court . . . ."

Page 4

"Absent clear evidence to the contrary," we presume that the trial court knew the law and properly applied it. Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). In addition, the comments by the judge cannot be viewed in a vacuum. Id. (holding that a reviewing court "will not fix upon isolated statements of the trial judge taken out of the full context in which they were made[] and use them as a predicate for holding the law has been misapplied").

Viewing the trial court's ruling and comments in context and taking into account the entire discussion, the record supports the conclusion that the judge properly applied the law. The court made clear that it did not exclude Lyman from testifying as an expert witness on the basis of his lack of previous experience testifying in a Virginia court. When the prosecutor commented in the argument opposing Lyman's admission as an expert witness, "I don't think he's ever testified," the trial judge responded, "That's not the issue." Further, the court later acknowledged its understanding of the rule relating to expert qualification and stated that it was "not required" that Lyman had previously qualified as an expert in the Commonwealth. The court then correctly concluded that the decision was a matter of its discretion. A reading of the record as a whole simply does not support the appellant's claim that the court prohibited the witness from testifying as an expert because he had not done so before in Virginia.

2. Admissibility of Testimony

The appellant argues that the trial court erred by not allowing Lyman to opine on whether the appellant's conduct "was consistent with well-established and widely-adopted police training and policies concerning use of force" as well as with the Portsmouth Police Department use of force policy itself. Further, he unsuccessfully sought to have Lyman testify about certain types of accepted police training. He contends that Lyman's testimony would have given the jury context for both his actions and the Portsmouth Police Department's use of force guidelines.

Page 5

Whether to admit expert testimony is a decision within the sound discretion of the trial court.3 See Currie v. Commonwealth, 30 Va. App. 58, 64, 515 S.E.2d 335, 338 (1999). An appellate court will reverse that determination to admit or exclude expert testimony only if the trial court abused its discretion under the particular circumstances of the case. E.g., Atkins v. Commonwealth, 272 Va. 144, 153, 631 S.E.2d 93, 97 (2006). "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493, 499 (2016) (quoting Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664, 670 (2015)). A reviewing court can conclude that "an abuse of discretion has occurred" only in cases in which "reasonable jurists could not differ" about the correct result. Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 268 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)). "[B]y definition," however, a trial court "abuses its discretion when it makes an error of law." Coffman v. Commonwealth, 67 Va. App. 163, 166, 795 S.E.2d 178, 179 (2017) (quoting Commonwealth v. Greer, 63 Va. App. 561, 568, 760 S.E.2d 132, 135 (2014)). It is within this legal framework that we review the trial court's decision.

We start with the fundamental principle that "[t]he sole purpose of permitting expert testimony is to assist the trier of fact to understand the evidence presented or to determine a fact in issue." Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002). In a

Page 6

Virginia criminal proceeding, a qualified expert witness is allowed to testify if "the subject matter is beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions." Va. R. Evid. 2:702(a)(ii). "[T]he trial judge must determine whether the subject matter of the testimony is beyond a lay person's common knowledge and whether it will assist the trier of fact in understanding the evidence or in determining a fact in issue." Utz v. Commonwealth, 28 Va. App. 411, 423, 505 S.E.2d 380, 386 (1998) (emphasis added); see also Dowdy v. Commonwealth, 278 Va. 577, 600, 686 S.E.2d 710, 723 (2009) ("'Expert testimony is admissible when it concerns matters not within the ordinary knowledge of the jury' such that it may assist the jury's understanding of the evidence presented." (quoting Payne v. Commonwealth, 277 Va. 531, 542, 674 S.E.2d 835, 841 (2009))).

However, not all relevant testimony is admissible. Factors that weigh against admitting probative evidence include if "it is confusing and will likely mislead the jury." Farley v. Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d 310, 312 (1995); see also Va. R. Evid. 2:403(a). Another "factor[] that weigh[s] against the admission of relevant evidence" is if that evidence presents a "danger of distracting the jury from the major issues in the case." Byrd v. Commonwealth, 30 Va. App. 371, 376, 517 S.E.2d 243, 245 (1999).

The evidence admitted regarding the Portsmouth use of force policy is important to our analysis because, based on the facts of this case, it was relevant to the appellant's mens rea. He introduced into evidence the Portsmouth Police Department policy manual on use of force that was in effect at the time of the offense. The manual...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT