Smith v. Commonwealth

• Decision Date: 16 January 2018
• Docket Number: Record No. 1058-16-2
• Citation: 808 S.E.2d 848,68 Va.App. 399
• Parties: Laurence Maria SMITH, s/k/a Laurence Marie Smith v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

68 Va.App. 399

808 S.E.2d 848

Laurence Maria SMITH, s/k/a Laurence Marie Smith

v.COMMONWEALTH of Virginia

Record No. 1058-16-2

Court of Appeals of Virginia, Richmond.

JANUARY 16, 2018

Ronald Hur, Senior Assistant Public Defender (Amr A. Ahmed, Assistant Public Defender, on brief), for appellant.

Victoria L. Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and Alston

OPINION BY JUDGE RANDOLPH A. BEALES

On June 15, 2015, the grand jury of Spotsylvania County indicted Laurence Maria Smith ("appellant") for first-degree murder in violation of Code § 18.2-32 for the murder of her husband, Sean Smith ("victim"). On December 17, 2015, following a four-day trial, a jury convicted appellant of voluntary manslaughter.

Appellant raises four assignments of error on appeal to this Court. First, appellant claims the trial court erred by convicting her of voluntary manslaughter "as the evidence was insufficient to prove appellant intentionally killed Sean Smith and that appellant acted in the ‘heat of passion’ and ‘upon reasonable provocation.’ " Second, appellant claims the trial court erred by denying her motion for a mistrial and her motion to set aside the verdict because appellant was not competent throughout the trial. Third, appellant claims the trial court erred by denying appellant's motion for a mistrial and her motion to set aside the verdict because "Appellant's PTSD [Post-Traumatic Stress Disorder

] flashback prevented her from meaningfully exercising her right to be present at trial and to testify in her own defense and appellant did not make a valid waiver of those rights." Finally, appellant assigns error to the trial court's denial of her motion "to pause and continue the trial to allow her to receive mental health treatment before waiving her right to be present at trial and to testify in her own defense."

For the reasons that follow, we affirm appellant's conviction of voluntary manslaughter.

I. BACKGROUND

Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court, Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), the evidence in this case established that on March 16, 2015, police responded to a 911 call at appellant's residence. Officer Tavarez, the first officer on the scene, was admitted to the residence by one of appellant's daughters. Once inside, Officer Tavarez encountered appellant whose hands were covered in blood. Officer Tavarez also heard appellant say, "It's my fault. I shouldn't have been playing with it." On the second floor of the residence, Officer Tavarez found the victim facedown and bleeding profusely from a gunshot wound

to the head. Officer Tavarez called for the assistance of paramedics; however, the victim died despite the efforts to save his life.

Officer Handy, the second officer on the scene, encountered appellant and her two daughters in front of the residence. Officer Handy also observed that appellant's hands were covered in blood. Officer Handy testified that appellant admitted to shooting the victim. He also testified that appellant said that she attempted to unload her handgun, and she believed it was empty when she pulled the trigger.

At trial, the evidence showed that appellant and the victim had an argument while removing multiple guns from an upstairs gun safe to prepare for an upcoming renovation. The couple placed the guns on a bed, and the victim directed appellant to go downstairs and get her "peashooter," referring to appellant's handgun. According to appellant, the victim told her, "Don't forget to uncock it and don't fuck around." He also said, "[Y]ou think you know how to handle guns but you don't." Appellant went downstairs, as she was directed, and retrieved her handgun. Appellant told police that while she was downstairs she "popped out the magazine," racked the slide back, and saw a bullet eject from the gun. Next, appellant removed the magazine from the handgun, and she returned to the upstairs room where the victim was laying out the guns. Appellant told police that she believed the gun was empty, and to show the victim that she had properly unloaded it, appellant raised the gun and pulled the trigger—shooting the victim. Appellant initially told police that she pulled the trigger without aiming. However, she later admitted that she aimed the gun towards the room's window, close to where the victim was standing.

After shooting the victim, appellant told police that she dropped the gun and rushed to help the victim, and in doing so, appellant got the victim's blood on her hands. Next, appellant said she picked up the gun because the children were nearby, and she took the gun downstairs, where she called 911.

Police recovered appellant's .380 caliber Smith and Wesson from the downstairs bedroom. During the investigation, the weapon was examined by the Department of Forensic Science, and, contrary to appellant's statements, the analysis of the gun showed no traces of the victim's blood on the gun.

During appellant's interview with police, appellant said that she and the victim had not argued that evening. Appellant told police, "[W]e were fussing, but not arguing." However, police interviews with the couple's two young daughters revealed that the girls heard "fighting" and "yelling" before the shooting.

After being confronted with this inconsistency, appellant admitted that the couple "was arguing about 20 minutes before all of this went down." Appellant also admitted that the argument upset her; however, she said she was no longer angry when she pulled the trigger.

In her interview with police, the eldest daughter, who was nine years old, said that appellant told her that appellant accidentally pulled the trigger while cleaning the gun; however, in an unsolicited statement, the eldest daughter said she was unsure if that was true. The child also told police that she had never seen appellant clean the gun.

Detective Lunsford testified at trial about the functioning of a firearm like the appellant's .380 Smith and Wesson. Detective Lunsford testified that the gun was a "double action only" handgun, meaning that it required more force to pull the trigger than would be required to pull the trigger on a single action handgun. Also, because appellant's weapon was "double action only," it required the same amount of force every time the trigger was pulled. The Commonwealth also presented evidence that appellant had completed a pistol safety course to obtain her concealed carry permit. Finally, during her interviews with police, appellant was able to recall and discuss basic safety rules for handling firearms.

A. The Trial

During the Commonwealth's case in chief, appellant became visibly upset on three separate occasions—two of which resulted in appellant waiving her right to be present during the presentation of the Commonwealth's evidence.

First, during the Commonwealth's playing of the video of appellant's interview with police, defense counsel informed the court that appellant needed to take a break. In response, the court took a thirty-minute recess so appellant could compose herself. Before resuming the video, the court spoke with appellant and her counsel about what was upsetting her. Appellant acknowledged that watching the video was upsetting, and the court asked if appellant wanted to continue watching it. Appellant responded, "No, please. Please no." Appellant had discussed with her attorneys the possibility of not being present in the courtroom while the video played, and appellant believed that her absence during it would not hurt her ability to discuss the case with her attorneys. Given the prospect of appellant choosing to absent herself from the trial, the court explained that appellant had a significant constitutional right to be present during every portion of the trial. Only appellant could choose to waive that right.¹ The court then took an early lunch recess to enable appellant to further discuss the matter with her attorney.

The second occurrence of appellant becoming visibly upset occurred after the lunch recess when the Commonwealth resumed showing the same video. After the jury was removed, appellant told the court, "I waive those rights to be here when you play those videos. I can't." The court took another recess to enable defense counsel to confer with appellant and to enable appellant to calm down. After the recess, defense counsel informed the court that he was very concerned and that appellant had been diagnosed as having "very severe PTSD—as a result of what happened here." Defense counsel said, "It appears to me that Ms. Smith is being taken back to the moment of what was going on there and she was distraught, she was completely overwhelmed asking to stop the trial for the day." Defense counsel made a motion "to pause for today" so appellant could speak with a mental health doctor whom she had previously seen. That doctor was a witness scheduled to testify on the following day.

The court asked appellant if she was experiencing any physical pain, and appellant responded that she had a headache and was experiencing chest pains. Appellant said, "I'm physically reliving everything right now." However, appellant said that the trial could proceed if she did not need to be present for the video. Appellant acknowledged that she understood that she would not have another opportunity to view the video. Appellant also said that she was not having any problem communicating with her attorneys and had no questions about their abilities to continue in her absence. Based on appellant's statements, the court found that she waived her right to be present for the playing of the video and that she understood she could return to the courtroom at any point. Over defense counsel's objection, the court made the following finding:

I am making a finding based on the observations here today that Ms. Smith

...