THE CIRCUIT COURT OF BRUNSWICK COUNTY W. Allan Sharrett,
B. Thorsen (ThorsenAllen, LLP, on brief), for appellant.
Murphy, Senior Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Judges Beales, Russell and AtLee Argued at Richmond,
RANDOLPH A. BEALES JUDGE
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.
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 (2010)
(quoting Murphy v. Commonwealth, 264 Va. 568, 570
January 21, 2016, at approximately 10:30 p.m. Trooper David
Pendergrass of the 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 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.
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.
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.
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" 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.
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, to the
suppression of her "logical brain," causing her to
flee and making her "not able to think straight."
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