FROM THE CIRCUIT COURT OF GILES COUNTY. A. Dow Owens, Judge.
Present: Chief Judge Koontz, Judges Coleman and Elder
In a jury trial, Barbara Jo Archie (Archie) was convicted of first degree murder for the death of Audra Kinder (Audra) and sentenced to life imprisonment. She contends: (1) the evidence was insufficient to sustain the conviction, and (2) the trial court erred in limiting the testimony of Dr. Scott, a psychiatrist, regarding an interview with Archie during which she was sedated with sodium amytal. We find that sufficient evidence supports Archie's conviction for first degree murder and that the trial court properly limited Dr. Morgan Scott's testimony of the sodium amytal interview.
At the time of her death on February 4, 1989, Audra, who was three years old, lived with her father, Gary Kinder (Gary), who had custody of her. Gary's girlfriend, Barbara Jo Archie, and Archie's daughter, Candice, also lived there. Audra came to live with Archie and Gary in October 1988 following a custody dispute between Gary and Tammy Kinder (Tammy), Audra's mother. Tammy had visitation rights with her daughter, but no longer had joint custody of Audra. Gary had filed complaints with the department of social services charging Tammy with sexually abusing Audra.
On Saturday morning, February 4, 1989, Gary got up around 8:00 a.m. After spending some time with Audra, Gary left the home to go to work. After Gary had been at work for about one-half hour, he received a call from Archie, who sounded hysterical. Archie told Gary that Audra would not get up. Gary rushed home and found Audra lying in a living room chair. The back of her head was swollen and puffy. She was breathing but would not wake up. Archie told Gary that she had called for an ambulance.
M. A. Adams, the emergency medical technician who arrived at the home, testified that Archie showed no emotion. He also testified that Archie told him that she had seen Audra fall and hit her head on the door. Audra was taken to Roanoke Memorial Hospital.
Dr. Thomas Kayrouz examined Audra at Roanoke Memorial. He testified that Audra was unconscious and not breathing on her own upon arrival at the hospital. The CT scan showed a large subdural hematoma which had bled into the brain. Dr. Kayrouz
testified that when he spoke to Gary and Archie at the hospital, Archie appeared "somewhat stoic, somewhat of a blank appearance on the face" with "no real inflection of tone in the voice or outward emotional concern." Archie told Dr. Kayrouz that she heard a thud and heard Audra cry out, then saw the child lying face up. Dr. Kayrouz testified that the massive brain injury Audra suffered could not have been caused in the manner described by Archie.
Audra died on February 5, 1989. Dr. Oxley, who performed the autopsy on February 6, concluded that the cause of death was a skull fracture with hematoma and bruising of the brain. Dr. Oxley testified that there were various bruises on the child's body and a large area of hemorrhage in the abdomen. He stated that the abdominal injury had been caused by a penetrating blow to a relaxed abdomen. He also noted a fractured arm and wrist. Dr. Oxley described these fractures as incomplete fractures, the type commonly caused by a jerking, twisting motion. Dr. Oxley determined that the skull fracture was caused by "multiple injuries, multiple impact."
On February 3, 1989, the evening before the incident, Archie received notice that Tammy had filed a complaint with social services against her concerning her spanking of Audra. That evening, Archie called Sharon Lowery (Sharon), Gary's sister. Archie told Sharon that she did not know how much more she could take. Archie said she was afraid that social services would take her own daughter, Candice, away from her. Archie repeatedly said she would "get" Tammy.
On the evening of February 4, 1989, Archie told Sharon that she heard a noise and turned around and saw Audra lying on the floor. Archie told Sharon that Audra had fallen off a stool. The next morning, February 5, Archie told Sharon that Audra had fallen off the chair in the living room.
Linda Johnson, an employee with the Giles County Department of Social Services, testified that she spoke to Archie on February 5 at the hospital. Johnson testified that Archie told her what had happened the previous morning. Archie told Johnson that she had been in the kitchen when "she heard a thump, walked back toward where Audra had been, called her name and got no answer." Johnson also testified that Archie stated that "she then saw Audra
lying next to the front door" and Audra "was on her back, her head was on the carpet." Johnson testified that Archie appeared "very unemotional." According to Johnson, Archie "was not crying, she had a very steady voice, . . . she did not get upset while describing what occurred to the child."
On February 5, Investigator Gary R. Price spoke with Archie at the hospital. Price testified that Archie told him that she was walking toward the kitchen when she heard a noise and turned and found Audra laying on the floor. Archie told Price that she had not seen Audra fall.
Gary testified that after Audra's death, Archie called him from the jail. When Gary asked what happened to Audra, Archie asked Gary if he would believe that Audra fell off the porch.
At trial, Archie pled not guilty by reason of insanity. Dr. Morgan Scott, a psychiatrist, had conducted an interview with Archie prior to trial during which Archie was sedated with the drug sodium amytal. Defense counsel sought to introduce testimony from Dr. Scott regarding his observations of Archie during the sodium amytal interview and testimony as to what Archie had said while under the influence of sodium amytal. Out of the presence of the jury, Dr. Scott was questioned concerning the evaluation tools he had used with Archie during the interview. Dr. Scott testified that he used sodium amytal because Archie could not remember pertinent events. Dr. Scott testified that he asked leading and suggestive questions during the interview.
The court viewed the video-tape of the interview. The court ruled that Dr. Scott could testify that as a result of his observation of Archie while under the influence of the drug, he was able to form an opinion. The court also ruled that Dr. Scott could state what that opinion was. However, the court ruled that Dr. Scott could not say what he observed of Archie while she was under the influence of the drug.*fn1
We first address Archie's contention that the evidence was insufficient to support her conviction. When reviewing the sufficiency of the evidence on appeal, we are guided by well-established principles. We view "all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). Moreover, "the jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Id.
To prove premeditated murder, the Commonwealth must establish: "(1) a killing; (2) a reasoning process antecedent to the act of killing, resulting in the formation of a specific intent to kill; and (3) the performance of that act with malicious intent." Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). Premeditation requires the formation of a specific intent to kill. Id. at 485, 384 S.E.2d at 98 (citing Smith v. Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550, 553 ...